USA – FLORIDA Law and Practice Contributed by: Elisha D. Roy, Sasser, Cestero & Roy
2.6 Cohabitation In Florida, no legal rights or obligations are established from a non-marital, cohabitation relationship. Posik v Layton, 695 So. 2d 759 (Fla. 5th DCA 1997). In Castetter v Henderson, 113 So. 3d 153 (Fla. 5th DCA 2013), the court determined that “a court may, however, impose a constructive trust to do equity between unmarried cohabitants”. Evans v Wall, 542 So. 2d 1055, 1056 (Fla. 3d DCA 1989). The party seeking to establish a constructive trust “must establish it by proof to the exclusion of all reasonable doubt”. Smith v Smith, 108 So. 2d 761, 764 (Fla.1959); see also Harris v Harris, 260 So. 2d 854, 855 (Fla. 1st DCA 1972). “Before a constructive trust in real prop - erty will be created, the person claiming such interest must prove beyond a reasonable doubt by clear and convincing evidence those factors which give rise to the trust”. The four elements that must be established for a court to impose a constructive trust include: (i) a promise, express or implied; (ii) a transfer of property and reliance thereon; (iii) a confidential relationship; and (iv) unjust enrichment. Provence v Palm Beach Taverns, Inc., 676 So. 2d 1022, 1024 (Fla. 4th DCA 1996); Heina v LaChucua Paso Fino Horse Farm, Inc., 752 So. 2d 630, 637 n. 4 (Fla. 5th DCA 1999). Cohabitants do not acquire rights by virtue of length of cohabitation. Cohabitants may acquire rights to child support by virtue of children born of the relationship upon the establishment of a support obligation. In addition, while not called cohabitation, Florida Statute 61.14 recognises a supportive relation - ship as a basis to modify alimony. Essentially, the paying spouse must prove the spouse who is receiving alimony is living with another person
like married couples, sharing in property owner - ship, bank accounts, life activities, but not actu - ally marrying to avoid the termination of alimony that comes with remarriage. 2.7 Enforcement Many different forms of relief exist when a party fails to comply with a financial order. However, the nature of the financial order can dictate the types of relief available to the enforcing party. These remedies can be used to enforce interna - tional financial orders, subject to the applicable statutes and rules. Civil Contempt A party may move the court to hold a non-com - plying party in civil contempt. Civil contempt is used to coerce an offending party into comply - ing with a court order rather than to punish the offending party for a failure to comply with a court order. Johnson v Bednar, 573 So. 2d 822 (Fla. 1991). A support award can be enforced by contempt proceedings and incarceration. Bras - well v Braswell, 881 So. 2d 1193, 1198 (Fla. 3d DCA 2004). A party’s incarceration for violation of a support order is meant purely to coerce compliance, not to punish. Therefore, a party must be released once they have complied with their support obligation(s). However, orders con - cerning property awards cannot be enforced by contempt and incarceration. Randall v Randall,
948 So. 2d 71 (Fla. 3d DCA 2007). Income Deduction Orders/Income Withholding Orders
Income deduction orders/income withholding orders ensure compliance by requiring a non- complying party’s employer to deduct sup - port obligations directly from the party’s pay. § 61.1301(1)(a), Fla. Stat. states that, “Upon the entry of an order establishing, enforcing, or modifying an obligation for alimony, for child
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