Posted by Nydia Streets of Streets Law in Florida Divorce
Debts acquired during a marriage are presumed to be marital debts. The spouse claiming otherwise has the burden to show that the debt is actually non-marital and/or that the other spouse should be solely responsible for the debt. The court must make findings concerning the debt and why it is the sole responsibility of one spouse. This was an issue in the case Lapomarede v. Pierre, 4D2024-0037 (Fla. 4th DCA November 27, 2024).
In this divorce case, the court determined a parenting plan and equitable distribution,. The court ultimately awarded an equal time-sharing schedule, with the parents rotating time with their child every 7 days. The court made the former wife solely responsible for a loan she took out shortly before the petition for divorce was filed. The former wife appealed.
As to the parenting plan, the court rejected the former wife’s argument that the former husband did not include in his petition a request for a weekly rotating time-sharing schedule. The court held “While the former husband’s counterclaim did not propose a specific time-sharing schedule in his pleading, he filed his proposed week on/week off time-sharing a month prior to the hearing. His proposed schedule was admitted into evidence without objection by the former wife. The former wife cross-examined the former husband as to why he thought the plan was in the best interests of the child, and he offered that it would allow each parent to bond better with the child and would cause less stress when the child entered school. In closing argument, the former wife argued that the former husband should not be entitled to 50/50 time-sharing. She never mentioned the former husband’s proposed plan.” On this issue, the court concluded “The court made detailed findings of fact supported by the evidence produced at trial and finding that the former wife lacked credibility in some of her testimony. Moreover, the former wife presented no evidence contesting the week on/week off schedule proposed by the former husband. We find the trial court had competent substantial evidence to support its findings.”
Turning to the issue of the loan, the appellate court noted the testimony showed the former wife took out this loan to consolidate credit card debt, debt owed to a friend and to pay expenses she incurred while unable to work during her pregnancy. The trial court found “After considering the factors set out in section 61.075(1), Florida Statutes, this Court finds that such loan should be unequally distributed to the Wife in total as equity compels. § 61.075(1)(j), Fla. Stat. This is a short-term marriage as the parties were married for less than four years. § 61.075(1)(c), Fla. Stat. The Wife solely incurred such liability, in her own name, without informing the Husband. § 61.075(1)(g), Fla. Stat. The Wife obtained the loan within four months of filing for divorce. § 61.075(1)(i), Fla. Stat.”
The appellate court reversed on this issue, holding “In this case, the trial court’s citation to specific statutory grounds are not supported by specific findings of fact, and the facts that are alleged are insufficient to justify the allocation of the entire loan to the former wife. Section 61.075(1)(c), Florida Statutes (2023), allows the court to take into consideration the duration of the marriage in considering equitable distribution. In this case, the marriage’s duration was not quite four years, making it a short-term marriage, but the court did not explain why that factor should require the former wife to shoulder the full amount of the loan. That the former wife incurred the loan solely in her own name without the knowledge of the former husband is also insufficient to warrant an unequal allocation of this marital liability. [. . .] Most significantly, the court cited to section 61.075(1)(i), and the fact that the former wife had obtained the loan only four months prior to filing for divorce. That section provides as a factor to consider in equitable distribution, “[t]he intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.” § 61.075(1)(i), Fla. Stat. (2023). The former husband did not present any evidence of the former wife’s intentional dissipation from the loan. It is questionable that this factor even applies to liabilities such as this. In any event, the former wife testified that she had used the loaned money to pay off accumulated debt from the pregnancy and to pay back a friend who had loaned money to both of them. While the former husband disputed the $3000 loan from the friend, he did not dispute the former wife’s payment of pregnancy and living expenses while she was on bedrest. Because this was a marital liability, the burden of proof rests on the party seeking an unequal allocation of liabilities and assets to prove the justification for that allocation.” On this issue, the court concluded “The former wife testified she used that portion of the loan to repay the friend for a loan during the pregnancy, and the former husband did not present any evidence that the loan from the friend was used for any purpose outside living expenses of the former wife and child. Without such evidence, the loan was a marital liability, and none of the trial court’s reasoning supports allocating it exclusively to the former wife.”
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