Posted by Nydia Streets of Streets Law in Florida Alimony
A party who wants alimony without having to file a petition for divorce can seek it under Florida Statute Chp. 61.09. This is referred to as a Petition for Support Unconnected with Dissolution of Marriage. The recent family law case Levy v. Levy, 4D18-3535 (Fla. 4th DCA April 17, 2019) involves this type of petition.
The wife filed a petition for alimony unconnected to dissolution of marriage alleging that her husband was ill and would soon be placed in a nursing facility, and therefore she needed a monthly alimony amount to meet her living expenses. Attached to the wife’s petition was a marital settlement agreement entered by the parties and signed by the husband’s agent who had a durable power of attorney. The durable attorney document stated the agent had the authority to "support and/or continue to support any person whom I have taken to support or to whom I may owe an obligation of support, in the same manner and in accordance with the same standard of living as I may have provided in the past." According to the appellate opinion, “It further provided that the durable power of attorney would not be terminated by Husband's subsequent incapacity.”
The trial court ultimately denied the petition based on the husband’s potential incapacity. The wife appealed, and the appellate court sided with her, holding “The entire purpose of a durable power of attorney, as opposed to a regular power of attorney, is to "show the principal's intent that the authority conferred is exercisable notwithstanding the principal's subsequent incapacity." § 709.2104, Fla. Stat. (2017); see also § 709.2102(4), Fla. Stat. (2017) (defining the word "durable," with respect to a power of attorney, as meaning "not terminated by the principal's incapacity"). By denying alimony based on Husband's potential incapacity, the court failed to give effect to Husband's intent under the durable power of attorney to designate an agent to act on his behalf notwithstanding his subsequent incapacity. As neither the validity of the durable power of attorney nor the agent's authority to act thereunder appear to be in dispute, the court was authorized to award alimony despite Husband's potential incapacity.”
Though not as common as a petition for divorce in Florida, a petition for support unconnected with dissolution may be helpful in certain situations. If you are considering filing this type of petition, consult with a Miami divorce attorney to go over your best options.