Written by: Lenorae Atter, Attorney at Law
Divorce cases involving alimony have been popular recently in Florida. The Florida appellate courts seem to be making up for the lack of alimony legislation by making rulings that continuously limit alimony and the award of such. The Florida alimony statute recently underwent an overhaul, making clearer lines of the length of the marriage that must or should exist in order for certain alimony to be awarded to a spouse. However, the hole that has caused quite a stir is that Florida still does not have an alimony calculation to help in the determination of the amount to be paid. In Jacksonville and surrounding areas, there is a tendency to award alimony based on need and ability to pay, not just the income disparities, but that is not always the case nor the popular approach throughout Florida, thus the appellate courts have begun making more provisions for the award of alimony.
A disparity in income does not, in fact, mean that because one party makes more than the other party that she or he should automatically pay alimony to the other. The court must look at the practicality of such. The reality is that just because there is a disparity in income does not necessarily mean that one party is in need or the other has the ability to make both houses equal financially. Financial equality sustained by one income for two households runs quite a risk for the paying party because often, that individual also takes more of the debts from the marriage. In a recent appellate opinion, Walker v. Walker, 1D11-2869 (Fla. 1st DCA April 12, 2012). , the court quoted the following, “Simple disparity in income will not support an award of permanent periodic alimony: ‘the purpose of permanent periodic alimony is not to divide future income to establish financial equality.’ See Rosen v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003)(citing Segall v. Segall, 708 So.2d 983 (Fla. 4th DCA 1998); Langevin v. Langevin, 698 So.2d 601 (Fla. 4th DCA 1997); Wright v. Wright, 613 So.2d 1330 (Fla. 4th DCA 1993).” This basically establishes that alimony should be awarded to assist the needing party in the future, not just to establish an equal financial footing of both spouses.
In addition, Fernandes v. Dernandes, 5D10-3741 (Fla. 5th DCA April 20, 2012). Addressed the idea of alimony not having to be paid to keep the parties or a party in the same lifestyle as was created during the marriage, the reason being that there is an impossibility in making two households equal to that standard of one household. The appellate court stated, “…indeed, it is the exceptional case when a couple’s resources and earnings prove sufficient to maintain two independent households in the same manner as the original household. Clearly the husband cannot be required to maintain the wife’s stand of living when this maintenance stretches beyond his financial capacity.” Id.
The reality is that there are things that may come up after the divorce that leads to the need for additional alimony, but the courts have stated that providing for alimony allows for future modifications and those factors can be addressed later. The courts do not intend to have one spouse be financially ruined due to a requirement to pay alimony. However, the courts also do not want to punish the lesser earning spouse to a point that she or he is in financial ruin. Florida alimony determinations are a difficult balance of finances because the parties are, in essence, creating two separate lives. The balance is ultimately based on one party’s needs and the other’s ability to pay. Awarding alimony over what the paying party can afford defeats the ultimate ideas of alimony. The concept is to keep the parties as equal as possible, but not to a level that is financially burdensome. It’s a hard balance that the trial courts face, but until the Florida legislature determines an overall calculation, the balance will remain for the appellate courts to continuously tighten down.