Jacksonville Divorce Lawyer Blog
Written by: Lenorae Atter, Attorney at Law
Alimony and division of property are often themes in a Florida divorce. Florida allows for alimony to be awarded when a spouse shows a need for alimony and the other party has an ability to pay. Florida also provides for marital property to be divided equally by the parties during their divorce. Therefore, if the parties own property in Jacksonville and are divorced, then the both may divide the property equally, whether by money value or actual division of property. However; what happens if a spouse dies after the divorce is final, but before the property is divided? And, what happens if a spouse filed for a change in alimony prior to his/her death?
Alimony is determined by need and ability to pay. The length of alimony is determined by many factors, including the length of the marriage, contribution of the parties during the marriage, marital lifestyle, etc. Once alimony is determined and ordered by the court, it is typically modifiable by both parties if something significant were to occur, such as change in health, retirement, etc. However, alimony obligations cease to exist upon the death of either party, which is why the obligor is typically required to maintain life insurance during the pendency of the alimony obligation. So, if a party dies so does the obligation. However, in a recent Florida case, the Former Wife filed for a modification of alimony and requested attorney attorney’s fees, Estate of Reale v. King, 36 FLW D1651 (Fla. 4th DCA August 3, 2011). Prior to the court hearing the argument to modify alimony, the Former Wife passed away, taking with her the right to alimony. However, since she had requested attorney’s fees, the Florida appellate court determined that her estate had the right to collect attorney’s fees from the obligor. Id.
In a case involving division of marital assets, which are those assets accumulated during the marriage, the Former Husband died before property could be divided per the court order, King v. King, 36 FLW D1651 (Fla. 4th DCA August 3, 2011). The Former Husband’s estate attempted to have the final judgment enforced so that the estate could properly divide the Former Husband’s property accordingly. Since the property was not previously divided, the estate attempted to have the judgment enforced in the trial court that originally issued the divorce order. However, that court was not willing to hear the case and referred the estate to probate for determination. The case was brought up on appeal and the Florida appellate court determined that while the Former Husband was deceased, the right to the property was determined in the family court and enforcement of that final order had to go through the family law court. Therefore, the Former Husband’s estate sought to have the divorce order enforced by the original court. Id.
In situations of death and divorce often court action will be sought, whether through probate court or family law court. If the issue involves a prior divorce order, then most likely the issue will have to be addressed in the original family law court system. The estate, therefore, may have standing by substituting the Former spouse in the proceeding. If you are having such issues, then you should contact a family law attorney or probate attorney to assist you. At our firm, we actually have both available, which can make the process easier for clients to navigate.