Articles Posted in Alimony

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 an alimony attorney, contact Matthew Lane & Associates, 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.

In an alimony case captioned Waldera v. Waldera, the trial court was presented with evidence concerning the Husband’s income during the previous ten years. However, the trial court only considered the Husband’s income during the one year period that preceded the entry of the Final Judgment. The Florida Court of Appeal ruled that this was error.

Calculating alimony was recently discussed by the Florida Court of Appeal in a case captioned Waldera v. Waldera.  In Waldera v. Waldera the case,  the Wife appealed the amount of the alimony that was awarded to her by the trial court in the Final Judgment of Dissolution of Marriage.    She argued that the trial judge reached an erroneous alimony determination, by improperly calculating her Husband’s income.  In reaching its calculation, the trial court relied solely on the Husband’s income for one year.  The Florida Court of Appeal agreed with the Wife that this was an error.

The appellate court pointed out that in making an alimony determination, a trial court is required look at all sources of income that are available to both parties.  For purposes of determining alimony, income is considered to be any type of payment, regardless of the source.  Income includes salary, bonuses,  commissions, and earnings as an independent contractor.  In awarding alimony, courts are required to consider all economic factors, including income, past earnings, net worth, and the parties’ assets.  In this case, although the trial court was presented with evidence concerning the Husband’s income between 2009 and 2016, the trial court only considered the income that Husband earned during the year preceding the entry of the Final Judgment for Dissolution of Marriage.  The appellate court pointed out that there is a presumption that a payor will continue to earn the same amount that he or she has historically earned, unless there is evidence to the contrary.

In a recently decided alimony case captioned Harkness v. Harkness, the wife appealed the final judgment dissolving her marriage and awarding her durational alimony. The husband and wife were married for more than nineteen years. During the marriage, the husband worked full time, and the wife was a stay at home mother raising the parties’ children. After the wife petitioned for dissolution of marriage, she found a job earning substantially less than her husband. In the Final Judgment dissolving the marriage, the trial court ruled that there was no basis for awarding permanent alimony to the wife because she has the capacity to financially sustain herself. Therefore, the trial court awarded her durational alimony for five years. The Florida Court of Appeal reversed this decision.

In reaching its determination, the Florida Court of Appeal stated that in deciding whether or not to award alimony, the trial court is required to first make a determination as to whether one of the parties has a need for alimony, and the other party has the ability to pay. After making this determination, the trial court is to decide which type of alimony is most appropriate. There is a rebuttable presumption that a marriage of seventeen (17) years or longer is a long-term marriage. There is also a rebuttable presumption that a trial court should award permanent alimony for a long-term marriage.

The purpose of permanent alimony is to provide for the necessities and needs of the recipient as they were established during the course of the marriage. It is not intended to divide the parties’ future income in order to create financial equality.  Permanent alimony is inappropriate when there is not a permanent inability on the part of the recipient to become self-sustaining. Alimony is intended to avoid, when possible, having a former spouse pass from always having more than enough, to having only enough to pay for the essentials of shelter, clothing, and food.

An alimony case was recently decided by the Florida Court of Appeal in a case captioned Baron v. Baron.  In Barron v. Barron, the Wife appealed a Final Judgment of Dissolution of Marriage that denied her request for permanent periodic alimony. The parties were married for twenty years. Rather than awarding the former wife permanent support, the trial court awarded her durational alimony for twelve months.

In reaching its decision, the Florida Court of Appeal pointed out that a long-term marriage is a marriage that lasts 17 or more years. Where there is a long-term marriage, there is a rebuttable presumption in favor of awarding permanent support. The purpose of durational alimony is to provide a payee with support for a specific period of time, when there is a long term marriage and there is no need for ongoing support on a permanent basis.

In the alimony case at bar, the Final Judgment of Dissolution of Marriage failed to provide an explanation as to why permanent support was inappropriate. The Florida Court of Appeal ruled that it is an abuse of the trial court’s discretion not to award permanent alimony for this long-term marriage, absent a finding that the presumption favoring permanent periodic alimony was overcome by substantial competent evidence.

A durational alimony case was recently decided by the Florida Court of Appeal in a case captioned Johnson v. Johnson. In this case, the husband and wife were married in 2006. They have two children. The husband worked in retail, and the wife was an auditor. The wife’s income substantially exceeded the Husband’s. In 2011, the husband stopped working in order to raise the children. In 2017, the husband returned to work. In the divorce proceeding, the Husband sought alimony from the wife. The lower court awarded durational alimony to the husband for a period of sixty months.

The wife appealed the trial court’s ruling. The Florida Court of Appeal reversed the trial court’s decision. The appellate court pointed out that the purpose of durational alimony is to provide funds for a set period of time. In awarding alimony, a trial judge is required to first make a determination as to the recipient’s need and the payor’s ability to pay. Once the court determines need and ability to pay, the trial court is to consider the following factors: (i) the parties’ standard of living during the course of the marriage; (ii) the length of the marriage; (iii) the parties’ ages and physical and emotional condition; (iv) each party’s financial resources; (v) the parties’ earning capacities; (vi) the parties’ contribution to the marriage; (vii) the responsibilities for parenting that each party will have after the divorce; (viii) the tax consequences of the award; (ix) income available to each of the parties from all sources; and (x) any other factor that the court deems just.

In awarding alimony, a trial court should follow a four-step procedure in which it decides: (a) a recipient’s need for support; (b) a payor’s ability to pay; (c) the appropriate type of alimony; and (d) the amount to be awarded. In the case at bar, the Florida Court of Appeal held that the trial court’s ruling was not grounded in competent, substantial evidence. Accordingly, the appellate court reversed the decision of the trial court.

An alimony case involving imputation of income was recently decided by the Florida Court of Appeal in a case captioned Jorgensen v. Tagarelli. In this case the wife appealed a final judgment in which the lower court incorrectly imputed income. In the case at bar, the wife earned $118,000, in 2016. The parties separated, and the wife voluntarily left her job and began working as a self-employed insurance broker, where she earned approximately $38,000. The husband asked the trial court to impute income to the wife based upon his contention that the wife intentionally caused the reduction her income.

The Florida Court of Appeal began by pointing out that parties asserting that their spouses are voluntarily underemployed or unemployed bear the burden of proof. The appellate court then stated that trial courts are required to impute income if they find that spouses are voluntarily underemployed or unemployed. In imputing income, courts are to determine the parties’ probable earnings and employment potential based upon their occupational qualifications, recent work history, and the prevailing earnings level for similarly qualified employees in the community.

Regarding alimony, the Florida Court of Appeal found that there was substantial, competent evidence that the wife was voluntarily underemployed. However, the lower court erred in imputing income solely based on the wife’s past earnings. The Court of Appeal stated that the trial court should have imputed income based upon the wife’s current employability and the availability of jobs in her field. Trial courts should impute income based upon the salaries that are currently being paid for available jobs in the relevant geographical area for which employees are qualified. Therefore, the trial court’s final judgment was reversed, and the case was remanded to the lower court for rehearing in order to calculate the proper amount of alimony.

A durational alimony case was recently decided by the Florida Court of Appeal in a case captioned Rhoden v. Rhoden. In this case the husband filed a Petition for Dissolution of a thirty-five year marriage. The husband denied that wife required alimony, and denied that he was able to pay it. The Court stated that the wife had several illnesses, and probably would not have been employable if she had not worked for her husband. The Florida Statutes enable trial courts to award several different types of alimony. In awarding alimony, a court must first find that one party has a need for support and that the other party has the ability to pay. Once the court makes this initial determination, the Court is required to consider other factors set forth in the Florida Statutes. In this case, the trial court awarded the wife durational alimony.

The Florida Court of Appeal found that the parties’ marriage was a long term marriage. A long-term marriage is a marriage having a duration of 17 years or more. When there is a long-term marriage, there is a rebuttable presumption that permanent alimony is appropriate. In this case, the trial court awarded the wife durational alimony, instead of awarding her permanent alimony. Durational alimony supplies the recipient with support for a set period of time when there is not an ongoing need for support on a long-term basis. Durational alimony can be awarded when permanent alimony is not appropriate. In this case, the Florida Court of Appeal reversed the trial court’s ruling because the trial court did not make a finding that permanent periodic alimony was inappropriate, and because the trial court did not find that the former wife did not have a permanent, ongoing need for support.

To speak with an alimony attorney, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

As part of an alimony obligation, a payor may be required to purchase life insurance to secure the award. In a recently decided case captioned Sager v. Sager the former husband appealed the final judgment. He argued that the trial court erred in requiring him to purchase life insurance to secure his alimony obligation. Husband and wife were married in 1982, and the former husband filed for divorce in 2016. Former husband was a mortgage broker and former wife was a teacher. The parties lived in the State of New Jersey for a large part of their marriage. The parties moved to the State of Florida and bought two houses. They used one as the marital home and used the other as a rental property. The former husband was 72 years old, and was retired. The former wife was 66 years of age. She did not have a college degree and was an early childhood teacher. She was also a substitute teacher in the summer. The trial court required the former husband to purchase a $250,000 life insurance policy to secure his alimony obligation to the former wife. The former husband appealed from the judgment requiring him to purchase the life insurance policy.

To secure alimony, the Florida Court of Appeal stated that trial courts may require that life insurance be purchased to secure alimony obligations when the trial courts make specific findings of fact that: (i) insurance is available for the payor, (ii) the payor has the ability to pay its cost, and (iii) that special circumstances warrant its purchase. Special circumstances that warrant the requirement that an obligor purchase life insurance include where the payee would be left in dire economic straits if the payor died, or where the payee is elderly, disabled, or has limited employment skills and the payor’s death would cause the payee to be dependent upon the generosity or welfare of others.

To speak with an alimony attorney, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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