Thursday, July 24, 2008

Cohabitation Supportive Relationships: Defining The Intent Of The Legislature

“A husband and wife ought to continue united so long as they love each other. Any law which should bind them to cohabitation for one moment after the decay of their affection would be a most intolerable tyranny, and the most unworthy of toleration.”
--Percy Bysshe Shelley
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The state of Florida's cohabitation statute section 61.14(1)(b), Florida Statutes (2005) leave a lot to be desired in what actually defines a supportive relationship. Not only that, but there are no firm guidelines from which a judge can make an informed ruling.

As a result, most all challenges to this statute by plaintiff's seeking to terminate or reduce alimony have been unsuccessful as further indicated by the below case.

Here is a portion of the statute:

(b)1. The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists.

2. In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question. The court shall give consideration, without limitation, to circumstances, including, but not limited to, the following, in determining the relationship of an obligee to another person:

a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as "my husband" or "my wife," or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.

b. The period of time that the obligee has resided with the other person in a permanent place of abode.

c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.

d. The extent to which the obligee or the other person has supported the other, in whole or in part.

e. The extent to which the obligee or the other person has performed valuable services for the other.

f. The extent to which the obligee or the other person has performed valuable services for the other's company or employer.

g. Whether the obligee and the other person have worked together to create or enhance anything of value.

h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.

i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.

j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.

k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.

By placing the burden on the obligor [person paying alimony], it has been made difficult if not impossible for the obligor to prove a supportive relationship. This is due to frequent misrepresentations by the obligee [person receiving the alimony], and reluctance to admit or provide any evidence as to their having a supportive relationship. If they did admit it, they would most likely have to forfeit any future alimony welfare payments. Knowing this, they have an incentive to be less than truthful to the courts.

In the Florida 4th DCA case of Linstroth v. Dorgan, 4D07-1493 (Fla.App. 4 Dist. 6-11-2008), Justice Farmer, in his dissent starting on page 6, provides an interpretation of the legislature's intent that provides a better guideline for judges to follow. While the dissent can only be quoted for "persuasive" purposes and not as a precedent, it does provide an indication of how the courts will be leaning in the future.


EXAMPLES OF A JUDICIAL SYSTEM AND JUDGES GONE AWRY:
* Nevada judge accused of demanding royal treatment
* Judge's changing story is suspect
* Update: State Supreme Court reprimands Ziegler in unprecedented ruling

EGREGIOUS EXAMPLES OF OUR "INJUSTICE" SYSTEM
* Judge Hall, Post-Star Team Up To Deny Fair Trial Rights
* NY High Court Upholds Judge's Removal for Jailing 46 for Ringing ...

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