Posted by Nydia Streets of Streets Law in Florida Divorce

For many reasons, couples who are married may decide to separate but not file for divorce. What are the consequences of remaining married to someone to whom you do not intend to remain married? Since marriage creates joint legal obligations, waiting to divorce may open both parties to alimony and equitable distribution claims which may not have existed had the parties divorced at the time they separated. This was an issue in the case Fiala v. Fiala, 4D21-1185 (Fla. 4th DCA January 12, 2022).

The parties were married in 1996 but separated in 2008. After their separation, each party moved on, living with other people in long-term relationships. Ten years after their separation, the husband filed for divorce. The wife counter-petitioned for alimony, equitable distribution and attorney’s fees. After a trial on these issues, the court entered an order finding that the parties’ marriage legally lasted only until their separation in 2008. The court therefore used this date to determine equitable distribution and alimony. In denying the wife’s alimony claim, the court noted that the wife had a positive net worth while the husband had a negative net worth. The wife appealed.

The appellate court first noted that the judge’s use of the parties’ separation date was error. This is because the Florida Statutes state “The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.” Fla. Stat. Chp. 61.075(7). However, the court found this error to be harmless because the parties’ financial affidavits as of the time of trial showed the husband had a negative net worth and the wife had a net worth of over $130,000.00.

The same analysis applied to alimony. The appellate court found it was error to find that this was a moderate term marriage when the parties were married for 22 years by the time the petition was filed. However, this error was found to be harmless where the evidence did not support that wife had a need, and husband had the ability to pay, permanent alimony. The husband argued the wife’s financial affidavit did not accurately and fully depict her financial status, including in-kind value of rent-free living and expenses for adult children, and the appellate court agreed.

When a divorce case requires careful consideration of unique factors, schedule a consultation with a Miami family law attorney to understand how the law may apply to your case.