Articles Posted in Alimony

In an alimony case captioned Tanner v. Tanner, the Florida Court of Appeal recently ruled that in order to determine whether a payor’s voluntary retirement is reasonable, a trial court is required to consider the payor’s age, health, reason for retiring, type of work, and the age at which others who perform the same type of work normally retire.

In Tanner v. Tanner, the Husband appealed the trial court’s order denying his petition for modification of his divorce decree. The parties were divorced in January 2016. The final judgment of dissolution required the Husband to pay permanent periodic alimony to the Wife. In September 2018, the Husband filed a petition to modify the divorce decree in which he sought to eliminate or reduce the amount of his alimony payments.

In the Husband’s supplemental petition for modification of alimony, the Husband stated that his employer terminated his employment, and that his medical condition precluded him from finding similar employment.  The trial court denied the Husband’s petition for modification of alimony based upon the fact that it found the Husband’s retirement at age 64 to be unreasonable. In his appeal, the Husband argued that his retirement was reasonable based on his age and his failing health.

A sweeping alimony reform measure was recently adopted by the Florida House and Florida Senate.  It has been sent to Governor Ron DeSantis for his consideration.  This is part one in a series describing the implications of this legislation.

First, permanent alimony was abolished in Florida.  There are now three types of alimony in Florida.  They are bridge-the-gap, rehabilitative and durational alimony.

Bridge-the-gap alimony is awarded to assist parties in making the transition from being married to being single.  It is intended to assist the recipient spouse with specific short term needs.  Bridge-the-gap alimony cannot exceed two years.  It ends upon either party’s death or upon the remarriage of the recipient spouse.  It is not modifiable in duration or in amount.

An alimony case involving the imputation of income was recently decided by the Florida Court of Appeal.  In a case captioned Douglas v. Douglas, the Florida Court of Appeal recently ruled that the party who seeks to impute income to the other spouse bears the burden of proving that the other spouse is employable and that jobs are currently available for which the recipient spouse is qualified. 

In Douglas v. Douglas, the husband appealed several of the rulings that the trial court made in the Final Judgment of Dissolution of Marriage.  The parties were married for eight years.  They were the parents of two children.  The wife was a stay-at-home mother, who took care of the parties’ children during the course of the marriage.  She did not work outside of the marital home during the marriage.  After the parties separated, the wife unsuccessfully applied for over thirty jobs during the parties’ separation. 

The husband was a professional basketball player. During his career, he played for the New York Knicks, Houston Rockets, Sacramento Kings, Golden State Warriors and the Miami Heat.  Recently, the husband played on a number of European teams.  The wife filed the Petition for Dissolution of Marriage. 

Alimony payments may be reduced or terminated when a former spouse enters into a supportive relationship.  The payor bears the burden to prove that a supportive relationship exists.  Some of the factors that Florida courts assess in determining whether a supportive relationship exists are as follows:

First, whether the recipient and the cohabiting party have held themselves out as a married couple.

Second, the amount of time that the parties have resided together in a permanent residence.

An alimony case involving the reimbursement of business expenses was recently decided by the Florida Court of Appeal in a case captioned Ortega v. Wood.  In Ortega v. Wood, the husband was an optician who owned an optical business with his mother.  The wife sought to impute income to the husband for in-kind benefits and business expense reimbursements that were provided to the husband by his business.  The optical business provided the husband with an apartment at no cost and paid for his personal expenses, including his dentist appointments, his doctor’s appointments, his massages, his lab tests, his pharmaceuticals, his lawn mower, and products that he ordered from GNC.

In reaching its alimony determination, the trial court did not consider the business’ provision of the husband’s apartment and the payments for the husband’s medical appointments, dental appointments, lab tests, massages, GNC products, and pharmaceuticals to be income. Because the husband testified that the business provided all of its employees with the same reimbursements, the trial court ruled that these payments were reasonable business expenses and did not consider them to be income when it calculated the husband’s alimony obligation.

The wife appealed the trial court’s Final Judgment of Dissolution of Marriage to the Florida Court of Appeal.  The Florida Court of Appeal reversed the trial court and held that the trial court should have included the in-kind payments and expense reimbursements that husband received from the optical business in determining the husband’s alimony obligation.  The appellate court pointed out that under Florida law, for purposes of calculating alimony, “income” is defined as any type of payment, including, without limitation, salary, wages, bonuses, commissions, disability benefits, worker’s compensation, retirement benefits and annuities, dividends, pensions, interest, trusts, royalties, and any other payments made by a private entity, person, or governmental entity.

In a recently decided alimony case captioned Morgan v. Morgan, the Florida Court of Appeal ruled that the size of an alimony award is based upon the standard of living that was established by the parties during the course of the marriage, and not the parties’ postseparation lifestyle.

In Morgan v. Morgan, the husband appealed the final judgment of dissolution of marriage.  He challenged the trial court’s alimony award and its equitable distribution of the parties’ assets.  The Florida Court of Appeal reversed both of the trial court’s rulings on these issues.

During the course of the marriage, the husband and wife had a comfortable lifestyle.  They lived in large homes, frequently traveled, and never had to worry about paying their bills.  After the parties separated, the husband could only afford to live in a small apartment, drive an old truck, and could barely pay his bills.  The trial court’s final judgment stated that during the course of the marriage, the husband and wife lived a lifestyle that was “upper-middle class”. The lower court acknowledged that the husband’s current lifestyle was not consistent with the parties’ lifestyle during the course of the marriage.  At the time that the trial took place, the evidence showed that the wife’s income was seventy-five (75%) percent greater than the husband’s income.  Despite these findings, the trial court only awarded the husband one thousand ($1,000.00) dollars per month in alimony.

In an alimony case captioned Speigner v. Speigner, the parties were married for almost twenty (20) years.  Both parties worked during the course of the marriage.  The Husband had the larger income.  The Wife worked, raised the parties’ children and ran the household.

After hearing the evidence, the trial court found that the Wife had a need for support and the former husband had the ability to pay.  The court stated that the Wife had significant business acumen and found that both the Husband and the Wife had the capacity to earn additional income. The trial court awarded the Wife eight years of durational alimony.

The Florida Court of Appeal reversed the trial court’s ruling.  In reversing the lower court’s ruling the appellate court pointed out that in Florida, a long-term marriage is a marriage that exceeds seventeen years.  There is a rebuttable presumption that permanent alimony will be awarded following a long-term marriage.  This presumption can only be rebutted if there is proof that after termination of the alimony payments the recipient spouse has the capacity to support him or herself at the marital standard of living.  Durational alimony is only appropriate if the court finds that the recipient spouse does not have an ongoing need for support on a permanent basis.  In order to justify an award of durational alimony following a long-term marriage, a court must find that the recipient spouse is capable of attaining a level of self-support that is commensurate with the marital standard of living at the time that the durational alimony expires.

An alimony case involving imputation of income was recently decided by the Florida Court of Appeal in a case captioned Waldera v. Waldera.  In this case, the husband and wife were married in 1999. At the time of their marriage, the wife held a bachelor’s degree in accounting.  She worked as a fulltime bookkeeper at the husband’s law firm.  When their only child was born, the husband and wife agreed that the wife would work part-time and would home school their child.  The wife continued to work part time at her husband’s law firm until 2011. After 2011, the wife worked part-time as a bookkeeper for some private clients.  In 2015, divorce proceedings were instituted.

In this appeal, the wife argued that the trial judge erred in its imputation of income to her.  The Florida Court of Appeal agreed.  In reaching its determination, the Court of Appeal pointed out that in order to impute income to a party, the trial judge must find that the party has the ability to earn more income than he or she is currently earning, and that he or she has deliberately refused to be employed at this higher earning capacity.  A court must make a finding that a party failed to make his or her best efforts to earn more money.  Income cannot be imputed based upon records that are over five years old.  Additionally, courts may not impute income to a party that is greater than that party has historically earned, absent special circumstances.  The party seeking to impute income must establish the range of salaries that are currently being paid for available employment opportunities in the area, based upon the employee’s qualifications, including their work history, education, and physical restrictions.  Finally, a trial court is required to award significant deference to the parties’ decision that a spouse is to stay home in order to care for their children.  This is especially so when the parties have established a course of conduct over a period of time.

To speak with a Wellington, Florida divorce attorney to discuss alimony, contact the Lane Law Firm, P.A. at (561) 363-3400.

In a recently decided alimony case captioned Ritacco v. Ritacco, the Husband and Wife were married for more than twenty-two years.  The Husband was the sole income provider during the marriage. The Wife raised the parties’ daughters, and did not work outside of the home.  The Husband receives a salary, a pension, and owns a DROP account.  The Florida Court of Appeal decided four alimony issues.

First, the appellate court pointed out that there is a rebuttable presumption that the trial court should award permanent alimony when there is a long term marriage.  A long-term marriage is a marriage that exceeds seventeen years.

Second, the Court of Appeal recognized that a trial court should impute income that can reasonably be received from a party’s liquid assets.  Where a party receives an award of equitable distribution that will result in immediate income, this income will be included in making an alimony calculation.  However, in the case at bar, the amount of income was so small that the court declined to impute it as income.

In a recently decided alimony case captioned Ritacco v. Ritacco, the Husband and Wife were married for more than twenty-two years. The Husband was the sole income provider during the marriage. The Wife raised the parties’ daughters, and did not work outside of the home. The Husband receives a salary, a pension, and owns a DROP account. The Florida Court of Appeal decided four alimony issues.

First, the appellate court pointed out that there is a rebuttable presumption that the trial court should award permanent alimony when there is a long term marriage. A long-term marriage is a marriage that exceeds seventeen years.

Second, the Court of Appeal recognized that a trial court should impute income that can reasonably be received from a party’s liquid assets. Where a party receives an award of equitable distribution that will result in immediate income, this income will be included in making an alimony calculation. However, in the case at bar, the amount of income was so small that the court declined to impute it as income.

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