Posted by Nydia Streets of Streets Law in Florida Child Support
When child support arrears are owed in Florida, the party who owes the arrears may be subject to having his or her money garnished. This includes inheritances. A party who owes arrears who willfully divests himself or herself of the ability to pay the arrears may be subject to the contempt powers of the court. Child support arrears was an issue in the case The Recovery Agents, LLC v. Tutko, 2D2024-0476 (Fla. 2d DCA January 22, 2025).
The former husband in this case owed $57,000 in child support arrears. Two years after the parties’ divorce, the former husband’s father passed away, leaving the former husband with about $100,000 composed of surplus funds from a foreclosure sale of the home. The former husband assigned his interest in the estate to The Recovery Agents, LLC (TRA) wherein TRA would receive 12% of the surplus funds in exchange for administering the estate. The former wife intervened in the probate case and claimed the arrangement between the former husband and TRA was meant to defraud her of the money owed to her for child support. Without holding an evidentiary hearing, the trial court determined the transaction between TRA and the former husband was fraudulent and entered an order in the former wife’s favor. TRA appealed.
The appellate court noted “Florida's Uniform Fraudulent Transfer Act (UFTA) provides a creditor a remedy to avoid a debtor's fraudulent conveyance ‘to the extent necessary to satisfy the creditor's claim.’ § 726.108(1)(a). UFTA guards against ‘[a] transfer made or obligation incurred by a debtor as to a creditor . . . if the debtor made the transfer or incurred the obligation . . . [w]ith actual intent to hinder, delay, or defraud any creditor of the debtor.’ § 726.105(1)(a). ‘To prevail on a fraudulent transfer claim, a creditor must demonstrate (1) there was a creditor to be defrauded, (2) a debtor intending fraud, and (3) a conveyance—i.e., a 'transfer'—of property which could have been applicable to the payment of the debt due.’ [internal citations omitted.].”
The court reversed, holding “TRA maintains that there is no evidentiary support for a finding of actual intent. As the moving party, [the former wife] had the burden of proving a fraudulent conveyance by a preponderance of the evidence. [internal citation omitted]. What she offered was her lawyer's argument and the allegations in her emergency motion. Unquestionably, a lawyer's argument is no substitute for evidence.”
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