The Contentious Divorce

Model answer

**1. MARITAL VS NON-MARITAL PROPERTY** - MARITAL: Home ($800K), Husband's retirement ($600K), joint savings ($150K) = $1,550,000 marital - NON-MARITAL: Wife's inheritance ($200K) - kept separate, remains her separate property

**2. EQUITABLE DISTRIBUTION** Florida begins from equal distribution and then applies the statutory factors - here her contributions to CHILDCARE and the INTERRUPTION of her career, having left nursing 15 years ago. An UNEQUAL distribution is therefore possible in her favour. Do NOT predict a number: the facts provided are insufficient to support a defensible percentage, and they do not establish that Wife will receive the 60% she seeks. Argue the factors, not a figure.

**3. NO PERMANENT ALIMONY (FL 2023 Reform)** Assuming this is an initial proceeding governed by current Florida law, Wife CANNOT receive permanent alimony—it was ELIMINATED by the 2023 reform. She may seek DURATIONAL alimony instead - but not automatically merely because permanent alimony is gone: she must establish entitlement, need, and the ability of Husband to pay, after the statutory factors are considered. One point answers routinely drop: her $200,000 inheritance is NON-MARITAL and therefore not divisible, but that does NOT make it irrelevant here. The court must consider her financial resources - including non-marital assets and any income they generate, plus whatever she receives in equitable distribution - when assessing NEED. The facts do not establish what income the inheritance produces or how readily it could meet her reasonable needs, so its effect on alimony cannot be determined conclusively - and note Florida does not automatically require a spouse to exhaust separate principal before receiving support.

**4. DURATIONAL ALIMONY CALCULATION** - Marriage length: 18 years - MODERATE-TERM, i.e. 10 years or more but less than 20 (a 20-year marriage is long-term) - Term cap: 60% of marriage length = approximately 10.8 years, subject to calculation from the actual statutory marriage duration, extendable only under EXCEPTIONAL CIRCUMSTANCES, and then only upon CLEAR AND CONVINCING evidence that the extension is NECESSARY, after applying §61.08(3) and considering the additional §61.08(8)(b) factors - Amount: need and ability to pay, subject to the statutory cap - the LESSER of (i) the reasonable need of Wife or (ii) 35% of the difference between the parties' NET incomes, with net income calculated as directed by §61.08(8)(c) through §61.30(2)-(3). An award may not leave the payor with significantly less net income than the recipient absent written findings of exceptional circumstances (§61.08(9))

**5. IMPUTED INCOME** Quitting his $500K surgeon position six months before filing is strong CIRCUMSTANTIAL evidence of VOLUNTARY underemployment - but the court must first resolve his stress claim. Keep the two analyses SEPARATE, because they run on different statutes. For CHILD SUPPORT, §61.30(2)(b) governs and provides that NO ADDITIONAL income based on alleged earning capacity may be imputed where the underemployment results from physical or mental incapacity or other circumstances beyond the control of the party. For ALIMONY, the analysis runs through §61.08 - need and ability to pay, with earning capacity relevant to ability - and §61.08(8)(c) reaches §61.30 only for the limited purpose of calculating NET INCOME. The facts say only that he CLAIMS the stress was too much, and the stated facts provide no medical or other corroborating evidence - so flag this as the THRESHOLD question rather than assuming it away. Name the burden first - for CHILD SUPPORT, the party SEEKING imputation must establish voluntary underemployment and the amount to impute, with competent evidence. Then keep the two tracks apart. For CHILD SUPPORT: income SHALL be imputed - the statute is mandatory, not permissive - once the court finds from the evidence that the underemployment is VOLUNTARY, finds no statutory exception applies, and has sufficient evidence of the AMOUNT (recent work history, occupational qualifications, prevailing earnings in the community). It does not follow merely because he fails to prove incapacity; the court must make the affirmative finding. For ALIMONY: earning capacity bears on ABILITY TO PAY under §61.08, and do NOT import the §61.30 incapacity exception as though it were the governing alimony test. One real overlap though: §61.30(2)(b) still applies when CALCULATING NET INCOME for the 35% cap, because §61.08(8)(c) borrows §61.30(2)-(3) for that purpose - it is the broader entitlement and ability-to-pay analysis that stays with §61.08. His prior $500K salary is IMPORTANT EVIDENCE of potential earning capacity, considered alongside his qualifications and prevailing community earnings - not automatically the imputed figure.

**6. CHILD CUSTODY / TIME-SHARING** - Best interest of the child governs. Keep DECISION-MAKING separate from the SCHEDULE: the court generally must order SHARED PARENTAL RESPONSIBILITY unless it finds that shared responsibility would be DETRIMENTAL to the child - that is a different rule from the time-sharing presumption below. Note the court is not limited to an all-or-nothing choice: it may allocate ULTIMATE AUTHORITY over specified matters based on best interests, or order SOLE parental responsibility upon the required finding that shared responsibility would be DETRIMENTAL - the two rest on different standards - FL 2023 (§61.13(2)(c)): there is now a REBUTTABLE PRESUMPTION that EQUAL TIME-SHARING is in the best interests of the child. A party seeking a different schedule must REBUT it by a PREPONDERANCE, and the court still evaluates the §61.13(3) best-interest factors. Missing this presumption is the biggest scoring risk in the question - it changes the STARTING POINT. Note also the procedural requirement: unless the parties agree to a court-approved schedule, the court must evaluate ALL the §61.13(3) factors and make SPECIFIC WRITTEN FINDINGS when creating or modifying a schedule - this is not limited to unequal schedules - Children's preferences (Emma 16, Jack 10) are considered but NOT controlling - and only where the court finds the child has sufficient INTELLIGENCE, UNDERSTANDING AND EXPERIENCE to express one. Emma's preference may carry more weight, but that depends on the court's assessment of those qualities rather than on her age alone; the facts do not establish her maturity - UNLESS the parties agree to a court-approved schedule, Wife must REBUT the equal-time-sharing presumption by a preponderance - her burden does not depend on Husband actively contesting it, so silence or default does not remove the presumption. Her 15 years out of the workforce to raise the children, and the children's qualifying preferences, are RELEVANT EVIDENCE - not necessarily enough to rebut the presumption. Past caregiving does not itself show that unequal FUTURE time-sharing serves the children; the present arrangement, each parent's current capacity, school and geography, and the remaining statutory factors all bear on it, and the facts establish none of them