Posted by Nydia Streets of Streets Law in Florida Divorce

In a recent case in which the former husband appealed a Florida final judgment of divorce, the court analyzed equitable distribution, alimony and life insurance issues. The case is Van Maerssen v. Gerdt, 4D19-133 (Fla. 4th DCA May 6, 2020).

The parties were married for seventeen years by the time a petition for divorce was filed, but they had been separated for years before the filing. As part of equitable distribution, the court awarded to the former husband a brokerage account and three retirement accounts which had been liquidated prior to trial to pay off marital debts. He also used these funds to satisfy a temporary fee award to the former wife during the proceedings. The former wife was awarded alimony in addition to approximately half a million dollars in marital assets. The former husband was ordered to secure life insurance to support the alimony judgment and to designate the former wife as a beneficiary of his thrift savings plan. The former husband appealed.

Regarding the equitable distribution, the court reversed the credit to the former husband the liquidated accounts because there was no finding that the former husband improperly spent these funds. The court noted “Although Wife contends on appeal that Husband did not need to liquidate those marital assets, based on her accountant’s testimony that Husband was yielding a monthly surplus of income from his nonmarital assets at the time, Husband testified he did not have sufficient funds to comply with the temporary fee awards. The trial court made no finding as to whether Husband could have paid the temporary fee awards without liquidating the marital accounts.”

Moving on to equitable distribution, the appellate court held it was error for the trial court to fail to consider income available to the former wife via assets distributed to her. The appellate court held “It appears from the evidence that the net proceeds of the sale of the marital residence was a substantial sum, which the trial court equally divided between the parties. The portion of the proceeds awarded to Wife should be deemed available for generating investment income, absent proof the money was used to purchase a new residence. [citation omitted] Thus, we agree with Husband that the trial court reversibly erred in its determination of the amount of alimony awarded to Wife without determining the income she could receive from her share of the proceeds from the sale of the marital residence.”

Last, the appellate court analyzed the trial court’s award of life insurance to secure alimony and the mandate to assign the survivor benefit option of the former husband’s pension plan to the former wife. The evidence presented at trial showed the former husband had a life insurance policy in the amount of $162,000. While he did not object at trial to the former wife being awarded the survivor benefit, he did raise the concern that she should not have the life insurance and the survivor benefit since it would operate as double insurance.

The appellate court reversed the life insurance award, holding the trial court did not make required findings of special circumstances that warranted the award. Even though the former wife argued the record reflected the former husband had previously failed to abide by support orders and there was no extra cost to the former husband because he already had the policies in place, the appellate court held the alimony ruling could not stand because these findings were not included in the court’s final judgment. As to the survivor benefit, the appellate court held “Notably, the transcript reflects that Husband presented evidence concerning this issue. Specifically, he testified that the defined survivor benefit would be a specific amount per month, with an associated cost of 10% of the annuity amount. Based on such evidence, we conclude that Husband is correct in that the trial court failed to account for the value and cost of the survivor benefit. Thus, we reverse the portion of the final judgment requiring Husband to pay the cost of the survivor benefit of his retirement plan for failure to make appropriate findings. On remand, the trial court shall make the appropriate determinations as to the value of the survivor benefit, if awarded as equitable distribution, and determine which party should bear that cost.”

Florida divorces with many assets can present complicated scenarios for equitable distribution. Schedule a consultation with a Miami divorce lawyer to go over how Florida divorce laws may apply to your case.