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Not all cases are typical. In Levy v. Levy, the Florida appeals court decided whether a wife could pursue court-ordered alimony “unconnected with dissolution” when her husband became mentally incapacitated.  He had signed a durable power of attorney beforehand to let others act for him on legal matters.


Case Background

Over time, Robert Levy’s mental capacity declined.  His wife, Paula, filed a motion to receive alimony not connected to a divorce.  She believed that he would soon be placed in a skilled nursing facility, and she needed support to pay their expenses.

Florida law allows for situations when one spouse becomes incapable of support.  If that happens, the other spouse can get a court order to legally enforce their contributions.

In her motion, Paula attached a marital property settlement agreement that stated her husband agreed to pay her monthly alimony.  Robert’s agent signed the agreement on his behalf as directed in the durable power of attorney.

The durable power of attorney declared that Robert authorized the agent to, among other things, “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.”  It stated further that it wouldn’t end following Robert’s later incapacity.

The court denied the petition, reasoning that it couldn’t legally order alimony because of concerns over Robert’s potential incapacity.  Though the court acknowledged the durable power of attorney, it didn’t make any findings about its validity or the agent’s authority to act on it.


Florida District Court of Appeal Judgment

The ruling reversed the prior decision because “the court incorrectly determined that it did not have legal authority to grant Wife’s petition because of Husband’s potential incapacity.”

As the appellate court found, Florida law allows for this situation. “If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.”

In its ruling, the appellate court applied the “de novo standard of review.”  It found that the sole issue was whether Robert’s potential incapacity legally prevented the trial court from awarding otherwise uncontested alimony.

The appeals court decided that the trial court failed to enforce the intent of the durable POA to designate an agent to act on Robert’s behalf notwithstanding his later incapacity.

The appellate court stated that “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.  Accordingly, we reverse and remand for further proceedings consistent with this opinion.”

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