APPEALING ALIMONY IN FLORIDA

Speak to an Appellate Attorney

FLORIDA ALIMONY APPEALS

Divorce cases are difficult and expensive.  When you fight for your children or finances in a Florida divorce court you expect the judge to follow the law.  But this doesn’t always happen.  Sometimes judges make mistakes or are biased.  The problem is that when a judge errs or is biased they can alienate people from property, parents from children, and force you from your house to the poor house.

It doesn’t have to be this way.  When a judge makes a mistake or is unfair you have the right to seek correction from Florida’s appellate courts.

Appeals from alimony orders are one of the more important areas of appeals that Florida Divorce Appeal Lawyers are asked to handle.  Alimony appeals are especially important because if alimony has not been determined correctly, either the spouse needing the alimony or the one paying the alimony  can be put in an unfair and impoverished situation.

Can Alimony be reversed in Florida?

Yes. An error in determining alimony is especially problematic in cases where permanent alimony is awarded because, barring an unforeseen change in circumstances, you can be stuck with the divorce court judge’s alimony decision for a long time to come.  Below are answers to commonly asked questions that Florida appeals attorneys receive when it comes to appealing a judge’s decision involving alimony.

What are some common errors Florida judges make when it comes to alimony?

The most common errors committed by trial courts when it comes to alimony are: incorrectly determining one party’s need for support; ordering the wrong amount of alimony; ordering alimony for too long; incorrectly determining either party’s actual income; and incorrectly imputing (or failing to impute) income to one party.

How Does a Florida Appellate Court Review a Judge’s Alimony Decision?

The standard of review for nearly all alimony awards in Florida is the “abuse of discretion standard”. Generally speaking, the “abuse of discretion standard” means that there must be “competant, substantial evidence” on the record at trial that supports the judge’s decision. Usually, there is not an “abuse of discretion” that requires the trial judge’s decision to be over-turned on appeal unless “no reasonable person would take the view adopted by the trial court”.

That said, the trial court’s interpretation of the law is typically subject to the “de novo” standard of review. In plain English, this means that the appellate court is allowed to determine whether the divorce court judge properly interpreted the law that applies to an alimony award. Mistakes in law can come up, especially on issues involving the judge ordering alimony to be paid longer than allowed by statute, or on issues involving the imputation of income.

What are the main factors the court is supposed to consider when determining an alimony award in Florida?

The primary factors that a Florida divorce court judge should consider are the “need” of the spouse requesting alimony and the “ability to pay alimony” of the other party. Other factors that are relevant include the length of the marriage, the standard of living during the marriage, whether the parties were living beyond their means, and each party’s ability to work.

How much of an explanation for an alimony award does a Florida divorce court judge need to give in their final alimony order?

In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony, the court shall consider all relevant factors, including, but not limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

 

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

 

(g) The responsibilities each party will have with regard to any minor children they have in common.

 

(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.

 

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) Any other factor necessary to do equity and justice between the parties.

Furthermore, when it comes to awarding permanent alimony, the judge is required to issue a findings that no other form of alimony is appropriate.

If a judge fails to include the findings above, the alimony award could very likely be subject to appeal.

How long is too long (or too short) when it comes to a Florida alimony award?

This is an area where divorce court judges have a great deal of discretion. Generally speaking, if a marriage is less than 17 years in duration, there is a presumption against the judge ordering permanent alimony, and the judge must explain in the alimony order as to why permanent alimony was ordered. In marriages less than 7 years, permanent alimony cannot be awarded unless there are written findings demonstrating that “exceptional circumstances” justify the award.

Furthermore, there are certain limitations on how long the alimony is payable depending on the type of alimony that is awarded. As an example, an award of durational alimony may not exceed the length of the marriage, an award of bridge the gap alimony may not exceed 2 years, and an award of rehabilitative alimony may not be longer than the time of the rehabilitation plan.

Whether an alimony award can be appealed based on the duration of the award is a fact intensive analysis that has to be done on a case by case basis. Those who believe the alimony award was inappropriate should strongly consider consulting with an appellate lawyer who is well versed in the intricacies of divorce and family law.

When is a Florida divorce court judge’s alimony award excessive to the point of requiring reversal?

This is an area where divorce court judges have a great deal of discretion. Section 61.08 (9), Florida Statutes, has a limitation stating that the “award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances”.

Otherwise, the amount of an alimony award should be considered excessive to the point of requiring reversal if the alimony awarded (1) clearly exceeds the “needs” of the alimony recipient or (2) clearly exceeds the “ability to pay” of the person ordered to pay alimony.

What expenses are supposed to be factored into determining a spouse’s need for an alimony award?

A spouse’s need for alimony in Florida is almost always based on the standard of living during the marriage. In other words, if you drove a Bentley and taxied around the country on a Lear Jet during the marriage your need for alimony is going to be evaluated differently than someone with the same income and net worth that was frugal and did not spend much money.

Notwithstanding the above, the standard of living during the marriage generally is irrelevant to an alimony analysis if it is apparent from the evidence shown at trial that the parties lived beyond their means during the marriage. In other words, if you spent more than you earned, your spending should be irrelevant to an alimony analysis and the alimony award should be capped at the paying party’s “ability to pay”.

My spouse received several million dollars worth of property and also received alimony! Can I file an appeal?

It depends. There is case law, especially in the Fourth District Court of Appeal of Florida, suggests that someone starts to lose their need for alimony once they receive at or over $2 million dollars in equitable distribution.

The amount of money someone receives in property distribution is relevant for several reasons. First, in many cases, the need for alimony goes down if property can be used to pay down debt and ultimately reduce a party’s living expenses. Furthermore, to the extent income can be earned off of assets received, a party’s need for alimony can be reduced.

The judge did not take into account the fact that my spouse was not working as hard as they used to once the divorce case started when determining the alimony award. Was that an error?

Possibly. If evidence was shown to the judge establishing that someone was deliberately unemployed, or underemployed, the judge can determine that someone’s income for purpose of paying support is what they used to earn before they stopped working. However, this is a factual determination, and the judge has the discretion to determine that the evidence does not support a finding that someone is deliberately unemployed or underemployed.

The judge based my ability to pay alimony on an income figure that I have not earned for years and cannot earn currently. Is that a reversible error in Florida?

This depends on whether or not there was evidence on the record establishing that you have the ability to earn what you earned previously, and to a certain extent, whether or not there are jobs in the area available to you based on your occupational qualifications.

The trend in Florida is to assume that someone has the ability to earn what they earned previously if they are out of the workforce or earning less that they did previously. However, if you testify that you are not capable of earning what you earned before for a legitimate reason, the burden shifts to the other party to establish what income you are currently capable of earning based on your education and training. If there is evidence showing that (1) jobs are available to you that (2) would pay you what you earned previously, the judge has the discretion to base your ability to pay support on your previous income.

On a similar note, if you can establish that you cannot earn your past income do to no fault of your own, it would be reversible error for the judge to set your ability to pay support based on your past average income.

The Florida judge refused to grant my request to modify alimony even though my spouse does not need it anymore. Can I appeal?

It depends. To obtain a modification of alimony you must establish a substantial, unanticipated change in circumstances that is involuntary and permanent in nature. If evidence established all of the aforesaid factors, you are more likely to have grounds to appeal.

If you are contemplating appealing a judge’s decision in your case, you should contact an appellate lawyer well versed in Florida’s laws pertaining to divorce and child custody issues. If you would like to speak to one of our firm’s divorce and appellate lawyers to review the ruling in your case and inform you of your options going forward, call (561) 844-1200 for more information about scheduling a consultation and strategy session.