Palm Beach Florida Divorce & Family Law Blog

In awarding alimony, the trial court is required to take into account the payor's living expenses. In a recently decided case before the Florida Court of Appeal captioned Will v. Will, the husband appealed the lower court's award of alimony. The husband challenged the alimony award, because the trial court erred in determining his ability to pay without taking into account his living expenses. The Florida Court of Appeal reversed the lower court's alimony award. The Florida Court of Appeal stated that when a trial court calculates alimony, it is required to take into account the payor's living expenses when determining the payor's ability to pay. In determining a payor's ability to pay, a court must consider the payor's necessary and reasonable living expenses. An award of support must take into account the payor's living expenses. An award of alimony shouldn't substantially endanger a payor's economic status. Since the lower court failed to take into account the husband's living expenses, the Florida Court of Appeal reversed the award and ordered the court to consider the husband's living expenses and his current income in calculating the appropriate alimony award.

In a recently decided divorce case, the Florida Court of Appeal decided who gets to keep the family home when there is a divorce. In a case captioned Walker v. Walker, the Florida Court of Appeal stated that as a general rule, absent special circumstances, the trial court should award to the primary residential parent exclusive use and possession of the marital home until the youngest child reaches the age of majority or is emancipated, or the primary residential parent remarries. Special circumstances include where the parties' combined incomes are insufficient to meet their normal living expenses, obligations, debts and the cost of maintaining the marital home. Exclusive use and occupancy will not be awarded where the former husband and former wife do not have a sufficient combined income to maintain the marital home and meet their obligations. Florida statutes require courts to assess the desirability of maintaining the marital home as a place for the children to live when it is equitable to do so, it is financially feasible, and it is in the children's best interest. In reaching this decision, divorce courts are to first decide whether it is in the best interest of the children to stay in the marital home, and, if not, whether other equities are served by giving the other spouse exclusive use and possession of the parties' marital home.

Calculation of alimony was recently discussed by the Florida Court of Appeal in a case captioned Reyes v. Fernandez. The court stated that permanent alimony is intended to provide for the needs and the necessities of life of the former spouse, as they were established during the course of their marriage. The two primary factors are the needs of the recipient spouse and the ability of the payor to provide the required funds.

Where a payor is voluntarily unemployed or underemployed, a Court may impute income to the payor based upon his or her earning capacity. First, the court must determine that the unemployment or underemployment was voluntary. Second, the court must determine that the party's unemployment or underemployment resulted from the payor's pursuit of his or her own interests or as a result of less than diligent efforts to obtain employment at an income level that is equal to or higher than the income that was formerly received.

Modification of Alimony was recently discussed by the Florida Court of Appeal in a case captioned Inman v. Inman. In this case the former husband sought appellate review of a trial court order denying his supplemental petition for modification of alimony. The former husband sought to terminate his alimony obligation based upon the remarriage of his former wife. He also sought modification based on the parties change in financial circumstances. The Florida Court of Appeal reversed the trial court based on its inappropriate application of the standard to modify alimony awards.

The parties divorce decree provided that the former husband was to make payments to the former wife for the remainder of her life. The former husband sought termination of his alimony obligation based upon Florida Statute Section 61.08(8), which provides that an award of permanent alimony terminates upon the death of either party or the remarriage of the party receiving alimony. The Florida Court of Appeal ruled that if the parties enter into a marital settlement agreement that provides that alimony shall continue despite the remarriage of the recipient spouse, then this agreement is valid and binding and supersedes the provisions contained in Florida Statute Section 61.08(8).