Put It In Writing
By Michael H. Gora
Q In 2004, my husband and I entered into a verbal, partial marital settlement agreement. We agreed to divide, equally, all of our financial accounts, including our joint and separate brokerage accounts, and retirement accounts, and the money we could get from selling our condominium.
We also agreed that neither of us would be responsible to pay alimony to the other, as we were both retired, and were receiving an equal amount of the marital assets. We were each eligible to receive about equal sums of social security. Neither of us hired an attorney to assist us in reaching the agreement.
We had, and still have the condominium in Boca Raton, which my husband agreed to live in until it was sold. He also agreed to pay all of the carrying charges, as he was going to be the only one living there.
Because of what was at that time a rising real estate market, we delayed in selling the condominium, which is now worth about half of what it was worth earlier. We never got divorced, but I have recently filed.
During the intervening years, I was much more successful in investing my share of the financial accounts that he was. He lost money in the market when it was going up. The cost of maintaining the apartment ate up much of his remaining capital. He and his lawyer now claim alimony, saying that he cannot pay for his own upkeep or even the taxes, insurance and maintenance on the condominium, now without a mortgage.
I have been living off my interest and dividends, but that can only support me. We have had the condo on the market for some time with no results. Its value has fallen almost 40%.
Do you think I will owe him alimony, even though we verbally agreed that there would be no alimony? If the condominium sells, can the judge now give him more than half the proceeds, to help him support himself?
A Contracts between husbands and wives are viewed under the same body of law applicable to commercial contracts. Contracts, which are to be performed within a year, do not have to be in writing, but contracts, which contemplate performance over more than a year, must be in writing.
Additionally, contracts calling for the purchase or sale of real estate must be in writing. Under the marital law statute, any agreement to waive alimony must be in writing, and be very specific.
The first thing that you should do is look back over any correspondence between you and your husband from the time of the agreement in the form of letters, written notes, or e-mails. A series of such writings can be strung together and be the written contract.
Contract law states that an exception to the rules requiring some contracts to be in writing is performance. If the actions required by a verbal agreement have been performed, the requirement for the writing can be over come. In your case, it appears that even in the absence of any writing the distribution of you financial assets would be upheld, whether or not it was to be completed within a year.
The alimony question is problematic, but as it appears you hardly have enough money to support yourself, at present, your liability might not exist or be very small.
Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Questions may be submitted to Mr. Gora at firstname.lastname@example.org.