Posted by Nydia Streets of Streets Law in Florida Divorce

Parties to a Florida family law case are usually required to file financial affidavits if there are financial issues involved. The affidavit is signed under the penalties of perjury, meaning if a party knowingly provides false information on the affidavit, he or she may be subject to criminal penalties. Additionally, a court can re-open a case if it is alleged a party filed a fraudulent financial affidavit or gave false testimony. This was an issue in the case Barrett v. Barrett, 5D20-946 (Fla. 5th DCA March 12, 2021).

The parties were in a long-term marriage (more than 17 years). The former husband was self-employed in the medical sales field while the former wife was a stay-at-home mother. The former wife sought to prove the former husband earned more income than he reported, and to that end she subpoenaed records for the business from New York. The former husband testified at trial that he did not do business with and had never done business with a specific doctor who was named at the hearing. The trial court granted the former wife permanent alimony without determining her level of need and based the payment amount on a $1,500 surplus claimed by the former husband in his financial affidavit. The former wife was awarded the parties’ most significant asset - the marital home, and she was ordered to make an equalizing payment to the former husband of over $200,000. Until the payment was made, alimony would be abated.

Following the entry of the final judgment of divorce, the former wife received records showing the former husband received payments from the doctor with whom the former husband claimed to have never done business. The former wife filed a motion to re-open the case and to reconsider the final judgment, but the trial court denied the motion. The former wife appealed.

The appellate court first noted the standard that applies to a motion to reopen a case: “To reopen her case, the former wife must establish that the presentation of new evidence will not unfairly prejudice the former husband, and that reopening will serve the best interests of justice. [internal citation omitted]. We consider four factors in evaluating the former wife's request: (1) its timeliness; (2) the character of evidence she seeks to introduce; (3) the effect of the evidence's admission; and (4) the reasonableness of her excuse justifying reopening.” The court went on to find the former wife had met her burden under the law to establish that reopening the case was proper. It also found there was an abuse of discretion when the trial court declined to hold an evidentiary hearing on the former wife’s fraud claims.

Next, the appellate court addressed the alimony award and found it was error for the trial court not to determine the former wife’s need, and to base the amount the former husband was to pay solely on the monthly surplus listed in his financial affidavit. The former husband argued the former wife’s need was irrelevant because he had no ability to pay more than the $1,500.00 ordered. The court held “But the former husband's inability to pay does not excuse the court's obligation to quantify the former wife's need. [internal citation omitted]. Additionally, the trial court did not find the former husband's inability to pay as the basis for the $1,500 award. The trial court did not explain its reasoning for this amount, other than finding the former husband had a ‘surplus’ after all his needs were met.”

The court also addressed retroactive alimony, holding “Second, the trial court abused its discretion by basing an award of retroactive alimony on the same grounds as it awarded permanent alimony. It excused the former husband from making any additional payment because he already paid ‘at least what the alimony award is’ by paying the former wife's bills and car loan. Retroactive alimony requires the same analysis as permanent alimony—it must be based on payee-spouse's need for alimony and payor-spouse's ability to pay.”

Last the court held the equalizing payment the former wife was ordered to make was improper: “First, a lump-sum equalizing payment is proper only when the paying spouse can ‘make the payment without substantially endangering his or her economic status.’ [internal citation omitted]. There is no evidence that the former wife can afford a $279,586 payment. The trial court awarded her no liquid assets, and she carries significant debt. The former wife correctly notes that the trial court could have protected the former husband's payment by ordering installment payments and requiring security and a reasonable rate of interest. See § 61.075(10)(b), Fla. Stat. (2017). Second, the amended final judgment does not account for $40,000 in ‘credit’ for the former wife's attorney's fees against the lump sum payment. If on remand, the trial court does not order a lump sum payment, this issue is moot. If the trial court recalculates attorney's fees based on a revised alimony or equitable distribution award, a different fee award may be appropriate.”

Equitable distribution issues in a Florida divorce can be complicated. This is why it is important to discuss your case with a Miami divorce lawyer to understand how the law may apply to the specific factors of your situation.