Articles Posted in Alimony

In a recently decided alimony case captioned Barlow v. Barlow, the Florida Court of Appeal ruled that a trial court should utilize the most recent income figures available in calculating alimony and child support and not rely on past earnings. In this case the Husband appealed the trial court’s ruling concerning the calculation of alimony and child support and the division of marital assets. The Court of Appeal ruled that the lower court made a mistake in calculating the Husband’s bonus income. The Court reversed the lower court’s ruling and required the trial court to retry the case.

The Husband and Wife agreed on the amount of the Husband’s base salary at the time of the divorce in 2015. In calculating the Husband’s income, the trial court utilized the Husband’s bonus in 2013, rather than utilizing the Husband’s bonus in 2014. The Florida alimony statute requires courts to take into consideration all sources of income available to both parties in awarding alimony. The Florida child support statute requires courts to include bonus income in calculating child support.

Income from bonuses should be utilized in calculating alimony and child support when the bonuses are continuous and regular. Here the trial court used the Husband’s 2013 bonus in calculating support payments. The trial court utilized this amount because it was the last bonus that the Husband received prior to the date of the filing of the divorce. The Court of Appeal held that the lower court should have utilized Husband’s 2014 bonus, which was the most recent bonus that the Husband earned prior to the date of the trial. A party’s most current income, or income that is expected to be earned in the near future, should be used in calculating alimony and child support awards. Past income figures should not be utilized when the Court has access to current figures. In the case at bar, the Court incorrectly utilized bonus income figures from 2013, instead of using current income figures from 2014. The husband’s bonus in 2014 was significantly lower than in 2013. The Court held that the final judgment should reflect the fact that the husband’s income was reduced. The Court of Appeal reversed the lower court and instructed the trial court to recalculate alimony and child support.

In a modification of alimony case, a payor’s alimony obligation can be reduced when the recipient voluntarily reduces their needs. In a recently decided case captioned Regan v. Regan, the trial court granted the Husband’s petition for modification.  The trial court permitted a reduction of the Husband’s alimony obligation from $9,000 per month to $7,800 a month. When the parties were divorced, they agreed that the Husband would pay $9,000 per month. The wife also received retirement accounts and investment accounts as part of the settlement. After the divorce, the wife significantly reduced her expenses by moving to another state, selling the marital house, and purchasing a smaller home. The trial court found that these reductions constituted a substantial change of circumstances and warranted a modification of alimony.

The Florida Court of Appeal held that where a party is required by the court to make alimony payments and the financial ability of either of the parties changes, either party is entitled to apply to the court for a modification of alimony. The trial court has the authority to make changes that equity requires, taking into account the parties’ changed financial ability or the circumstances of the parties. The trial court has the authority to increase or decrease alimony. In order for a modification to be granted there must be a substantial change in circumstances that was not contemplated at the time of the divorce which is material, sufficient, involuntary and permanent. The involuntary aspect has been applied where a party’s ability to pay is reduced. Where a recipient voluntarily reduces his or her living expenses, a reduction in alimony may also be granted. Where, as here, the recipient spouse’s expenses are reduced by more than one half as a result of her reducing the size of her home and moving out-of-state, the Husband’s alimony obligation may be reduced.

To speak with a modification of alimony attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a recently decided alimony case, the Florida Court of Appeal stated that permanent alimony is intended to allow the recipient spouse to maintain the standard of living established by the parties during the course of their marriage. In this case, the parties were married for 39 years and had adult children. The parties agreed upon the distribution of their assets, but were unable to agree upon the amount of the wife’s alimony award. The parties agreed that the Wife was to receive ½ of the Husband’s military retirement benefits. The parties both took on debt. During the course of the marriage, the wife worked and raised the parties’ children while the Husband served in the military. The wife was a bartender in the marriage’s early years and was then a realtor. The wife was then in a motorcycle accident and was not working at the time of the trial. The wife was in the process of attempting to obtain disability benefits at the time that the trial took place. At the time of trial, the Husband was retired and was working on a contract basis. The husband also received a disability check.

The trial court found that the wife had a need for alimony and that the husband had the ability to pay. However, the court only awarded the wife a small amount of alimony and failed to describe how it calculated this amount. The Florida Court of Appeal reversed the trial court. The Appellate Court ruled that the amount of an alimony award should allow the recipient spouse to maintain the parties’ standard of living during the course of their marriage. The alimony award must also be consistent with the payor’s ability to pay and the other spouse’s need. The Court of Appeal found that the small alimony award was not supported by the competent substantial evidence.

Additionally, the trial court imputed income to the wife based upon the possibility that the wife might receive disability benefits if her claim was approved. The Appellate Court reversed this ruling, holding that imputed income cannot be based on speculation concerning future events.

In a recently decided alimony case captioned Jimenez v. Jimenez, the Florida Court of Appeal stated that in reaching a decision concerning alimony, a trial court is required to consider every one of the factors set forth in the Florida Statutes. In deciding whether or not to award alimony, a trial court is required to decide whether one of the parties has the ability to pay alimony and whether the other party has the need for alimony. If a court determines that one party has the ability to pay alimony and that the other party has the need for alimony, the court is required to consider all of the following ten factors. First, the standard of living established by the parties during the marriage. Second, the length of the marriage. Third, the physical and emotional condition of each of the parties and the age of the parties. Fourth, each parties assets and liabilities. Fifth, the parties’ earning capacities and the need for additional training and education. Sixth, each of the parties’ contribution to the marriage. Seventh, the need to stay home with any minor children. Eighth, the tax consequences of an award of alimony. Ninth, each parties’ sources of income from employment or investments. Tenth, any other factor that the court considers is necessary to reach a fair and just resolution of the matter.

In the event that the trial court fails to consider all of the alimony factors, the case will be reversed on appeal. At that point the case will be remanded to the trial court to retry the case.

To speak with an alimony attorney in Wellington and Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a recently decided alimony case captioned Jimenez v. Jimenez, the Florida Court of Appeal stated that in reaching a decision concerning alimony, a trial court is required to consider every one of the factors set forth in the Florida Statutes. In deciding whether or not to award alimony, a trial court is required to decide whether one of the parties has the ability to pay alimony and whether the other party has the need for alimony. If a court determines that one party has the ability to pay alimony and that the other party has the need for alimony, the court is required to consider all of the following ten factors. First, the standard of living established by the parties during the marriage. Second, the length of the marriage. Third, the physical and emotional condition of each of the parties and the age of the parties. Fourth, each parties assets and liabilities. Fifth, the parties’ earning capacities and the need for additional training and education. Sixth, each of the parties’ contribution to the marriage. Seventh, the need to stay home with any minor children. Eighth, the tax consequences of an award of alimony. Ninth, each parties’ sources of income from employment or investments. Tenth, any other factor that the court considers is necessary to reach a fair and just resolution of the matter.

In the event that the trial court fails to consider all of the alimony factors, the case will be reversed on appeal. At that point the case will be remanded to the trial court to retry the case.

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

In a recently decided alimony case captioned Hua v. Tsung, the husband filed an action for divorce. The parties were married for 17½ years. The Husband and wife were in their early forties. The Husband was the primary breadwinner and wife was a homemaker and stay-at-home mother. The Husband owned several businesses during the marriage. The Husband owned part of a restaurant. The Husband also allegedly owned shares in a company named DSC Holdings Limited. At the time of the divorce, the husband lived with a new girlfriend and their two minor children in Brazil. The Wife lived in Broward County, Florida, and took care of the parties’ minor children. During the marriage, the wife and the husband received generous gifts from the husband’s parents. The husband’s father bought them a home in California. When the parties moved to Florida, the Husband’s parents bought them a home in Broward County. The Broward County home was valued between $650,000 to $700,000. The parties also bought a rental property. The parties’ comfortable lifestyle was due in large part to the Husband’s father. The wife earned no income.

The Court of Appeal stated that in awarding alimony, the trial court must first make a specific factual determination concerning whether one party has an actual need for alimony and whether the other party has the ability to pay alimony. After making these two factual determinations, the trial court must then determine what type of alimony to award. The alimony statute sets forth several factors for the trial court to consider in choosing the type of alimony to award, including, but not limited to, the age of the parties, the duration of the marriage, the earning capacities of the parties, the financial resources of the parties, the employability of the parties, and the contribution of the parties to the marriage. A rebuttable presumption exists in the alimony statutes that a marriage lasting more than 17 years is a long-term marriage. An award of permanent alimony is appropriate after the dissolution of a long-term marriage.

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

In making an alimony award, adultery and infidelity can only be considered by the trial judge when the adulterous conduct involves the dissipation of marital assets. In a case captioned Keyser v. Keyser, the parties were married for twenty-years. This is considered a long term marriage. When there is a long term marriage, there is an initial presumption that an award of permanent alimony is appropriate. It was also alleged in Keyser v. Keyser that one of the spouses engaged in marital infidelity.

The Florida Court of Appeal recently stated that in making an alimony award, a trial judge is permitted to consider a spouse’s infidelity. The Florida Court of Appeal pointed out that Florida Statutes Section 61.08(1), allows the trial judge to consider adultery in making an alimony award. However, the Court stated that without a showing that marital assets were used to support the allegedly adulterous behavior, infidelity is not an appropriate basis for awarding a larger share of the parties’ marital assets to the innocent spouse. The Appellate Court also stated that adultery is not a sufficient basis to deny an award of alimony to the other spouse. Finally, even if adultery does take place, the payor’s ability to pay and the payee’s need are the primary factors that the trial court should consider in making an alimony award 61.08. In making an alimony award the trial court must first determine whether the payor has the ability to pay alimony and whether the recipient has an actual need for alimony before it considers the other statutory factors set out in Florida Statutes Section 61.08.

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

In calculating alimony, income will be imputed to the owner of non-income producing assets. In a case captioned Sherlock v. Sherlock, the husband appealed the final judgment dissolving the parties’ marriage. The parties were married for seventeen years. A seventeen year marriage is rebuttably presumed to be a long-term marriage. The husband was awarded non-income producing assets. These assets were comprised of financial accounts and real estate.

The trial court denied husband’s request for permanent alimony. The trial court ruled that the husband could earn income from his real estate. The court also ruled that the husband would earn income from his investments. The trial court imputed income to the husband based upon his investments and his real estate. The trial court found that a conservative return on investments of three percent per year would produce income for husband without requiring him to invade principle. The trial court did not require the husband to deplete the principle or sell his personal property.

The Florida Court of Appeal affirmed the trial court’s ruling. It held that it was appropriate to impute income to the husband from his non-liquid, income producing assets. The Court found that it was appropriate to require the husband to earn a three percent return on his non-income producing assets.

In a divorce proceeding involving alimony, a spouse claiming income should be imputed to an unemployed or underemployed spouse must show that the unemployed or underemployed spouse is employable and that jobs are available. In order to determine the amount of income to impute, the Court must consider the spouses’ recent work history, occupational qualifications, and prevailing earnings in community for the class of jobs available. In making an alimony award, the trial court is to utilize the prevailing income in the community to impute income to the payor and not income that could be earned by the payor from a relocation. In Broga v. Brogathe Florida Court of Appeal recently stated that income is imputed to an unemployed or underemployed individual if such unemployment or underemployment is found by the court to be voluntary. If the trial court finds that a person’s unemployment or underemployment is voluntary, the probable earnings level of the payor should be determined based upon his or her recent work history, his or her occupational qualifications, and the prevailing earning level in the community in which the payor lives.

The prevailing income in the community in which the payor lives, not income that could have been earned if the payor relocated to another community, is to be used by the Court to establish the appropriate amount of imputed income for purposes of making an award of alimony.

To speak with a Jupiter, Florida divorce attorney about alimony questions that yo may have, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

The pending Florida Alimony Reform Bill was recently revised in the Florida Senate. The original version of the bill was replaced by a committee substitute. The revised bill creates new alimony guidelines. In calculating alimony, the Court is to first calculate the amount of each party’s monthly gross income. Included in a party’s monthly gross income are the actual income that a party earns and the potential income that a party could earn. Additionally, included in a party’s monthly gross income are the actual income that a party earns from nonmarital property and marital assets distributed to that party, as well as potential income that a party could earn from nonmarital property and marital assets distributed to that party. In calculating the difference between the parties’ monthly gross income, the income of the party seeking alimony is be subtracted from the income of the other party. If this is a negative number, the presumptive alimony amount is $0.

The legislation in the Florida Senate creates a presumptive range for the duration that alimony is to be paid and a presumptive range for the amount of alimony that is to be paid. The low end of the presumptive range for the amount of alimony that is to be paid is to be paid is calculated by using the following formula: (0.015 x the years of marriage) x the difference between the monthly gross incomes of the parties. The high end of the presumptive range for the amount of alimony that is to be paid is calculated by using the following formula: (0.020 x the years of marriage) x the difference between the monthly gross incomes of the parties. In calculating the presumptive alimony amount range, twenty (20) years of marriage is used to calculate the low end and the high end for marriages of twenty (20) years or more. If a court establishes the duration of the alimony award at fifty (50%) percent or less of the length of the marriage, the court shall use the actual years of the marriage, up to a maximum of twenty-five (25) years, to calculate the high end of the presumptive alimony amount range. The duration of a marriage is determined from the date of the marriage until the date of the filing of the divorce.

The low end of the presumptive range for the duration that alimony is to be paid is calculated by using the following formula: 0.25 x the years of marriage. The high end of the presumptive range for the duration that alimony is to be paid is calculated by using the following formula: 0.7 5 x the years of marriage.