In alimony cases, living with someone may reduce or eliminate the need for alimony when the live-in relationship is found to be substantially equivalent to a remarriage. In a recently decided case captioned Bruce v. Bruce, the wife appealed the trial court's refusal to award her alimony. The parties were married for twenty years. They had three children. The wife worked part time and took care of the children during the day. The wife had serious medical issues, including being hearing impaired and having permanent arthritis, and was a cancer survivor. The wife moved out of the marital home and into an apartment with her boyfriend. The wife denied that she was in a supportive relationship with her boyfriend. The wife contended that she owes her boyfriend back rent, which she intends to repay in the future. The wife contended that she pays for her own phone, electric and water bills and pays for her own groceries. The wife and her boyfriend have no joint financial accounts, they have no joint investments and they do not jointly own personal or real property.
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.
In an alimony case, there is a rebuttable presumption that a seventeen-year marriage is a long-term marriage and that an award of permanent alimony should be made. If the trial court does not award permanent alimony, the trial court must make findings as to why this rebuttable presumption should not apply. In Quinones v. Quinones the Florida Court of Appeal recently had a case before it in which the wife appealed a judgment awarding a dissolution of marriage from her husband. The wife argued that the lower court mistakenly found that her marriage to her husband was a moderate term marriage. The wife also argued that she should have received an award of permanent alimony. The Florida Court of Appeal agreed with the wife and reversed the lower court's ruling. The parties were married in 1992. The husband filed a petition for dissolution of marriage after the parties had been married for seventeen years. By the time that the case was tried the parties were married for 23 years. Three weeks before the trial was held, the husband lost his part-time job and was in the process of transitioning to new full-time job. The trial court ruled that the wife should not receive alimony due to the fact that the marriage was a moderate term marriage and the financial circumstances of the parties.
In calculating alimony, income received by the alimony recipient from retirement accounts (such as 401ks) is considered in determining the alimony recipient's need where principal in these retirement accounts will not be invaded for purposes of support. In a case captioned Stoltzfus v. Stoltzfus, the Florida Court of Appeal recently had before it a case in which the husband challenged the trial court's award of alimony. The husband's challenge was based upon the amount of alimony that the trial court awarded to his wife. The wife also cross-appealed based upon the amount of alimony that she was awarded. The husband alleged that the lower court failed to take into account income that the wife received from her retirement accounts in determining the wife's need for alimony. The husband pointed out that the wife received income from two 40 IK accounts that wife received as part of the equitable distribution of the parties' assets. The trial court had found that the 40 IKs were generating income , but found that the wife was not be able to receive that income until she was sixty-five.
In awarding alimony income can be imputed to an unemployed or underemployed spouse under certain circumstances. Florida Statutes § 61.30(2)(b), Florida Statutes, states that monthly income can be imputed to an unemployed or underemployed spouse if that spouse's unemployment or underemployment is voluntary. In a case captioned Dottaviano v. Dottaviano, the Florida Court of Appeal recently stated that the trial court is required to utilize a two-step analysis in deciding whether or not to impute income to an underemployed or unemployed spouse. First, the court should determine whether the spouse's termination of employment was voluntary. Second, the trial court should decide whether the former spouse' s subsequent unemployment or underemployment was the result of the former spouse's pursuit of his or her own interests or the result of a less than diligent efforts to find a job that pays income at a level equal to or better than that formerly received.