Tuesday, November 21, 2006

No Compelling State Interest For Alimony

“Economic necessity cannot justify a disregard of cardinal constitutional guarantee.” — Riley v. Carter, 165 Okal. 262

In fact, there simply is no "compelling" state interest for the alimony statute. Any interest offered as a "compelling" can readily be rebutted. You must realize the test is a "compelling" state interest...not "rationally related to a state interest."

1. If the state were to try arguing “not wanting to have needy spouses on the public dole” as a "compelling” state interest...then "every" divorce should be examined to see if that would happen...and they are not! 90%-95% of all divorces are uncontested. Even with those contested, unless the spouse pleads for alimony, the court cannot give it...

2. If “not wanting to have a needy spouse on the public dole” was the reason, the state would equally be concerned that a party getting married does not turn into a "needy spouse." They should check the earning power of the husband, how many children are planned, is it a second marriage, are there kids. etc...when someone wants to "enter" marriage. Why simply check "some" citizens who are "exiting" marriage to see if a needy spouse will result. Have you ever read a legal opinion that says the state's interest is to prevent needy spouses? It’s unlikely that you did.

3. There are no statutes that say a wife must live at a certain lifestyle while she is married. If the husband wanted to slow down and downsize the life style, she cannot go to the court and say .."he can work harder and make more...make him do it.”

There are more but you get the drift. All divorces must be treated the same. Entry and exit from marriage should be treated the same. And if the reason you offer ..is right, it is a taking...taking private property (ex husband's money) for a public good to save welfare and taxes for the public.

4. In Florida, the "Dissolution of Marriage" statute has a purposes section. They are crystal clear. There is no mention of any compelling state interest

In Florida, there is another good reason...consistency in the legislation of the “compelling interest”....that does not exist. In Florida, they repealed the motorcycle helmet law...and made the simple requirement you can ride without a helmet if you have $10,000 in health insurance.

Surely, if they were interested in the plight of needy spouses being in poverty after an accident, they could have made the requirement if you are married, you need $10,000 in life insurance. They could care less about a needy spouse as a result of a motorcycle accident.

The needy spouse on the public dole argument is a joke! It’s just that no one ever challenges it or thinks it through

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Be sure to visit these sites: www.abolish-alimony.org/ and www.alimonycentral.org

Tuesday, November 14, 2006

Alimony and the 13th Amendment

"It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used. When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power."
— Cook vs. Iverson, 122, N.M. 251.

Here is an excellent article that summarizes one of the arguments against alimony, written in an article for the Florida Bar Journal by Stephen Martyak:

Reiss and Walsh’s Mathematics for Computing Imputed Income (July/August), while a thorough and cogent analysis of the improper imputation of income and its effect on alimony awards, erroneously reinforces the myth that imputation of income is lawful. Chapter 61 alimony provisions, which permit the courts to impute income, violates the U.S. Constitution’s 13th Amendment ban on involuntary servitude.

United States v. Kozminski, 487 U.S. 931, 942 (1988), a case in which the U.S. Supreme Court was faced with the problem of defining involuntary servitude in a criminal civil rights violation case demonstrates the applicability of the 13th Amendment to alimony statutes and explicitly to the concept of imputed income to affect alimony.

Servitude is a condition “in which a person lacks liberty especially to determine one’s course of action or way of life.”
Id. at 968. The Court held that involuntary servitude “necessarily means a condition…in which the victim is forced to work for [another] by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.” Id. at 952. Also, “we find that in every case in which this [c]ourt has found a condition of involuntary servitude, the victim had no available choice but to work or be subject to legal sanction.” Id. at 943.This is precisely what 61.08 alimony provision and imputed income do.

When the lifetime yoke of permanent alimony is placed around the neck of a Floridian who merely seeks to alter his or her right of association and marital status, the family bar guffaws when the victim exhorts, “This is slavery and against the 13th Amendment.” Like so many other myths about alimony law, the error is that, in fact, the statute does impermissibly infringe the 13th Amendment.

The 13th Amendment is judicially recognized as much broader that the naïve perception of men of color in chains in the 19th century. Perhaps, it is time that the Florida legal system awakens to the antediluvian charter of F.S. §61.08 and begins to shine the constitutional light on the alimony statute.

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Be sure to visit these sites: www.abolish-alimony.org/ and www.alimonycentral.org

Tuesday, November 07, 2006

Cohabitation Can Affect Alimony Payments

“There, we adhered fervently to the axiom that this Court is "'bound' to construe constitutional rights, which 'operate in favor of the individual, against government,' so as to 'achieve the primary goal of individual freedom and autonomy.'"
--N. Fla. Women's Health & Counseling Servs., 866 So. 2d at 647

The new laws terminating alimony payments of those spouses whose ex is cohabiting with another person sounds very tempting and appears of offer hope to thousands of alimony payers.

Those of you hoping to have your alimony payments terminated because your ex has a live-in boyfriend, the hope of achieving it is a very distant possibility. The burden on you to prevail is very high and is very unlikely that you can achieve it.

Not only will the probability of failure be high in the courts but also you will probably incur considerable legal fees and expenses to challenge your ex and prove the existence of the cohabitational relationship.

The Florida law is relatively new and the court records show no caselaw in support of terminating alimony that has successfully challenged or supported the statutes. So there is very little to go on. The statutes are written in such a way as to give the judges excessive discretion in a manner reminiscent of the way the alimony statutes are written. There are no consistent narrow and definitive guidelines for them to follow.

Florida Statute 61.14 Enforcement and modification of support, maintenance, or alimony agreements or orders.

There are two cases prior to the implementation of the cohabitation statute that give some indication of how the courts viewed such a relationship:

DIBARTOLOMEO v. DIBARTOLOMEO, 679 So.2d 72 (Fla.App. 4 Dist. 1996)
“Absent a valid settlement agreement between the parties,[fn1] a trial judge may not include a provision in a final judgment automatically terminating alimony upon the receiving spouse's cohabitation with another. Buscemi v. Buscemi, 610 So.2d 674 (Fla. 2d DCA 1992); Condren v. Condren, 475 So.2d 268 (Fla. 2d DCA 1985). To justify a post judgment modification, the focus should not be so much on the cohabitation as on how the living situation has impacted the former spouse's financial condition and need for continued support. See Maclaren v. Maclaren, 616 So.2d 104, 106 (Fla. 1st DCA 1993). Because it does not entail the same benefits, duties and rights as a traditional marriage, cohabitation alone cannot precipitate a termination of alimony without the factual finding of a change in circumstances concerning the former spouse's needs and finances.” See Sheffield v. Sheffield, 310 So.2d 410 (Fla. 3d DCA 1975), cert. denied, 328 So.2d 844 (Fla. 1976).
RENO v. RENO, 884 So.2d 462 (Fla.App. 4 Dist. 2004)
"A trial judge may not order that alimony cease simply because the alimony recipient cohabits with another person, even when this arrangement appears to be one consistent with a de facto marriage. See Dibartolomeo v. Dibartolomeo, 679 So.2d 72, 72-73 (Fla. 4th DCA 1996). However, cohabitation may justify the modification and elimination of alimony, depending on how the new living situation has impacted the alimony recipient's financial condition and continued need for alimony. Id. at 73.

In this case, there appears to be conclusive evidence that almost all of the former wife's living expenses are being paid by her fiancé, as she conceded such. Nonetheless, while this may support the elimination of alimony, the former husband did not request this relief. Given that the former wife's needs may change in the future, the proper course is to reduce alimony, even if done to a nominal amount.”
However, there is encouragement in a recent case that indicates the burden of proving a need for continued alimony payments shifting to a cohabitating spouse.

DONOFF v. DONOFF, 4D05-3918 [November 1, 2006]
“In Bridges v. Bridges, 842 So.2d 983, 984 (Fla. 1st DCA 2003), the court held that when a former spouse paying alimony has established that the payee is receiving support from an unmarried cohabiting partner, a substantial change in circumstances has been shown, and the burden then shifts to the recipient spouse to show if there is any continued need for alimony. Bridges explained that the burden of proof shifts to the receiving party to justify an amount of alimony because the true economic condition is uniquely within her knowledge and may not be available to the payor. The court followed Lee v. Lee, 544 So.2d 1083 (Fla. 1st DCA 1989), in this holding."
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Be sure to visit these sites: www.abolish-alimony.org/ and www.alimonycentral.org