HAROLD HOFFNER, APPELLANT/CROSS APPELLEE,
v.
HEIDI HOFFNER, APPELLEE/CROSS APPELLANT
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Harold Hoffner appeals from a modified final judgment in a dissolution of marriage case, specifically challenging the lower court's treatment of his disability pension. The appellate court affirms the income and alimony findings but reverses the disability pension award, holding that a disability pension currently being received is not a marital asset subject to equitable distribution, though it may be considered as a source of income for alimony purposes.
A disability pension upon which a spouse is presently receiving benefits is not a marital asset subject to equitable distribution because, by its nature, it replaces future lost income. While it may be a source of income for calculating alimony, any alimony award based on disability pension income should be treated as permanent periodic alimony and thus terminate upon the recipient's remarriage or the death of either party.
[1] A disability pension upon which a spouse is presently receiving benefits, by its very nature, replaces future lost income and is not a marital asset subject to equitable…
[2] A disability pension may be a source of alimony, but it is not a marital asset subject to equitable distribution.
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Join FLexlaw to unlock all legal intelligence“a disability pension upon which a spouse is presently receiving benefits, by its very nature replaces future lost income, and thus is not a marital asset subject to equitable distribution”
Establishes the core holding that current disability pensions are not marital assets
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Join FLexlaw to unlock all legal intelligenceHarold and Heidi Hoffner were parties to a dissolution of marriage. Harold received a disability pension of approximately $500 per month. The original…
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POLEN, Judge.
Appellant, Harold Hoffner, brings this appeal from the lower court’s order modifying a final judgment of dissolution of marriage, after this court reversed the final judgment and remanded in Hoffner v. Hoffner, 541 So. 2d 784 (Fla. 4th DCA 1989). We affirm the order modifying the final judgment as to the court’s findings regarding the parties’ income and the award of permanent periodic alimony. We write only to address the lower court’s treatment of the disability pension. In Hoffner, this court remanded, directing the lower court, in part, “to determine whether and to what extent, if any, the husband’s ... disability pension” was a marital asset. Id. at 785. In retrospect, we may have misled the trial court and, thereby, the parties. A pension which a spouse will realize in the future may or may not be a marital asset. However, we are of the view that a disability pension upon which a spouse is presently receiving benefits, by its very nature replaces future lost income, and thus is not a marital asset subject to equitable distribution.
Unlike the situation of a lump sum. payment as in Weisfeld v. Weisfeld, 545 So. 2d 1341 (Fla.1989), there was no proof that the payments on this disability pension had any component which Weisfeld would have identified as being a marital asset. Therefore, while it may be a source of alimony, see Hanks v. Hanks, 553 So. 2d 340 (Fla. 4th DCA 1989), it is not a marital asset subject to equitable distribution.
After conducting an evidentiary hearing, the lower court issued its order modifying the final judgment, and awarding the wife $100.00 per month from the husband’s approximately $500.00 per month disability pension plan, with payments to continue as long as the husband received payments under the pension plan. Apparently the trial court did what it was directed to do, and in that respect it cannot be faulted; however, the result of this modification is that the husband’s monthly pension is treated as an asset, such that the wife’s entitlement to $100.00 per month will continue even after remarriage. That is where the court erred. The fault is ours, not hers.
If the trial court meant to say that the $500.00 per month payment as received during the marriage became marital property, jointly available to meet the parties' expenses, then the trial court properly could have included this $500.00 per month as part of the husband's income, and the $100.00 per month award to the wife could have been designated as an additional permanent periodic alimony award. Such award would terminate on the wife’s remarriage or on the death of either party. We would have affirmed such a result, and on remand the trial court is welcome to consider this alternative.
With reluctance, we reverse that portion of the order modifying the final judgment of dissolution of marriage which addresses the disability pension, and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
STONE and WARNER, JJ., concur.
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Davidson v. Davidson, 882 So. 2d 418 (Fla. 4th DCA 2004)…distribution. See Blaine v. Blaine, 872 So. 2d 383 (Fla. 4th DCA 2004). On the other hand, a disability pension “by its very nature replaces future lost income, and thus is not a marital asset subject to equitable distribution.” Hoffner v. Hoffner, 577 So. 2d 703, 704 (Fla. 4th DCA 1991); see also Hanks v. Hanks, 553 So. 2d 340, 343 (Fla. 4th DCA 1989). For the purpose of determining assets subject to equitable distribution, “[t]he cutoff date ... is the earliest of the date the parties enter into a valid s…
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Gaffney v. Gaffney, 965 So. 2d 1217 (Fla. 4th DCA 2007)…distribution. See Blaine v. Blaine, 872 So. 2d 383 (Fla. 4th DCA 2004). On the other hand, a disability pension “by its very nature replaces future lost income, and thus is not a marital asset subject to equitable distribution.” Hoffner v. Hoffner, 577 So. 2d 703, 704 (Fla. 4th DCA [*1221] 1991); see also Hanks v. Hanks, 553 So. 2d 340, 343 (Fla. 4th DCA 1989). The determination whether any portion of a disability pension is a marital asset requires the trial court to examine its basis: When a disability p…1 / 2
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Swedlow v. Swedlow, 840 So. 2d 372 (Fla. 4th DCA 2003)…PER CURIAM. We reverse the trial court’s determination that the husband’s disability policy was a marital asset subject to equitable distribution. See Hoffner v. Hoffner, 577 So. 2d 703, 704 (Fla. 4th DCA 1991); Hanks v. Hanks, 553 So. 2d 340, 343 (Fla. 4th DCA 1989); Bloch v. Bloch, 688 So. 2d 945, 947 (Fla. 3d DCA 1997). We affirm on all other issues. On remand, the sole issue for the circuit court is to increase the award of per…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weisfeld v. Weisfeld, 545 So. 2d 1341 (Fla. 1989)
- Gussie Hanks v. Hanks, 553 So. 2d 340 (Fla. 4th DCA 1989)
- Hoffner v. Hoffner, 541 So. 2d 784 (Fla. 4th DCA 1989)