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Divorce Florida Style
Q: Until recently, I was a very successful licensed real estate sales agent in north Broward County. I specialized in water front homes in Pompano through Lighthouse Point, and usually made an income of between $300,000.00 and $400,000.00 a year.
My husband and I got divorced three years ago. During the last several years of the marriage, he worked out of the house as a freelance writer, and made about $50,000.00 a year. He took care of the children, now thirteen and eleven years old.
At the time of our divorce we had been married for fifteen years. We entered into a marital settlement agreement. He became the residential parent, I have visitation. I pay him permanent alimony and child support, which total about $8,000.00 a month.
He got our house, which was fully paid for, and I got equal value in other real estate holdings. We had no other savings. I bought a house, with almost nothing down, and a large mortgage based upon my income.
My income began to disappear, slowly, three years ago. In 2005 I made $150,000.00, $100,000.00 in 2006, and last year only $50,000.00. I have a load of listings, but almost no sales, this year.
I continued to pay my obligations to my Ex until three months age, when there was no money with which to pay. By that time, I had sold my real estate holdings, other than my house, now in foreclosure, and an empty residential lot in Pompano, in order to pay my mortgage, the alimony, child support, and other obligations, such as the children’s health insurance.
I never tried to reduce my payments, as I foolishly thought that the real estate market would come back any time. My former husband filed a contempt motion last week to try to collect the support. I called a lawyer this morning. He’ll see me next week. He said he could defend me on the contempt, for a small retainer, but I cannot afford to file a case for lowering my payments. Do you think I can be put in jail for non-payment of support?
A: In order for you to be held in contempt, and incarcerated the judge must make two separate findings, and enter a very specific order allowing you to “purge” your contempt.
He or she must first find that at the times you failed to make payments, you did so intentionally, when you had the ability to make the payments. If, when payments were missed, you decided to pay your own bills rather than the support, you and the judge may have a disagreement about which should have been paid first, or how you might have financed your support payments.
If the judge finds that you could have made the payments, or some of them, and did not, you can be held in contempt of court. However, every civil contempt sentence of confinement must contain a “purge provision” giving the respondent the key to his or her own jail confinement.
The purge must clearly state the conditions you would have to perform to free yourself from confinement. The provisions in the order, must be consistent with what the judge said in court, at the time of the hearing, and must contain a statement finding that you have the “present ability” to pay the purge amount, which may be much smaller than your regular payments.
The order must identify the source of your ability to make the required payments, and must be consistent with the court’s findings regarding your ability to pay at the time you did not pay. The court is not limited to cash you have on hand, but can order you to liquidate any and all assets that you have to make the payments. In that case, a reasonable amount of time must be given to liquidate the asset.
The judge will probably not be able to jail you, or want to jail you, if you can demonstrate your good faith attempts to continue to pay your support payments at all times. Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Questions may be submitted to Mr. Gora at mhgora@sbwlawfirm.com.
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