Posted by Nydia Streets of Streets Law in Florida Alimony

When a party meets the threshold requirement of showing an unanticipated and substantial change in circumstances that warrants modification of alimony in Florida, the next step is for the court to assess need and ability to pay. That is, the need of the spouse asking for alimony and the ability of the other spouse to pay it. In Nangle v. Nangle, 4D19-31 (Fla. 4th DCA December 18, 2019), the appellate court considered the appeal of a former husband who argued the trial court failed to take into consideration each party’s financial circumstances in denying his petition to modify alimony.

The parties were divorced in 2008. At that time, the trial court reserved ruling on alimony. In 2009, the former wife petition for the court to determine alimony payments. At that time, the former husband was receiving installment payments as part of his compensation. These payments had an eventual end date. Based on these payments, the trial court awarded the former wife permanent alimony. When those payments ended, the former husband sought to modify his alimony obligation, showing his only sources of income were his social security, pension and small dividend and interest payments. The evidence showed the former wife’s assets and income had increased since the establishment of spousal support payments.

Despite this, the trial court denied the former husband’s petition for modification, holding that because it was contemplated that the installment payments would eventually end, the change was anticipated when the court originally ordered the alimony amount. The former husband appealed, arguing the trial court ignored evidence of both parties’ financial change. Employing a mixed standard of review in which the trial court's legal conclusions were reviewed de novo and the trial court's factual findings are reviewed for an abuse of discretion, the appellate court reversed the trial court’s ruling.

The appellate court held “The court found that because the affidavit listed these payments, the original court clearly considered the cessation of these payments when determining alimony. It reasoned that the original court must have understood installment payments were temporary in nature such that the cessation was contemplated. However, that is the trial court's supposition, not an articulated fact. [. . .] A key factor in determining whether a modification is warranted is determining whether, after the final judgment is entered, the parties’ ‘financial abilities have changed.’ [. . .] A trial court cannot require a spouse to incur indebtedness to pay alimony. While a court may consider the spouses' assets in determining his or her ability to pay, it cannot require the spouse to deplete assets to make alimony payments.” The appellate court noted the former wife’s improved financial standing and the former husband’s decreased income.

Modification of alimony in Florida is a task that should be undertaken with the assistance of counsel. Schedule a consultation with a Miami divorce lawyer to understand how the law may apply to your specific set of facts.