Posted by Nydia Streets of Streets Law in Florida Alimony

In a long-term marriage, there is a presumption in Florida that permanent alimony is appropriate. This is explained in the case Rhoden v. Rhoden, 1D18-3307 (Fla. 1st DCA April 29, 2020) in which the former wife appealed the trial court’s decision to award her durational alimony after a thirty-five year marriage.

At a brief hearing on the petition for divorce, it was established that the former wife had health issues and that her last employment was through the former husband at $200 per week. Prior to that she earned minimum wage. At the time of divorce, the former husband was 55 and the former wife was 53. The court asked the former husband if he could pay $610 per month to the former wife for the next 10 years until the parties could apply for Social Security and the former husband responded that he could. Accordingly, the court imputed minimum wage to the former wife and awarded her only durational alimony for ten years which it indicated she could request to be extended. The former wife appealed, arguing it was error for the court to impute income to her and to award her only durational alimony without any statutory findings.

The appellate court agreed with the former wife. The court held “The trial court did not address the rebuttable presumption of permanent alimony nor did it explain how or why the presumption had been overcome. The findings the court did make were insufficient to rebut the presumption in favor of permanent alimony and were not supported by competent, substantial evidence. [. . .] Durational alimony may be awarded when permanent alimony is ‘inappropriate.’ The trial court did not find permanent alimony was ‘inappropriate’” (citations omitted). The appellate court also found error with the trial court’s reliance on speculative future Social Security benefits, holding “There was no evidence that the parties would collect Social Security in ten years’ time. The trial court erred in considering future, anticipated events in setting current alimony. [citation omitted] Alimony should be based on ‘current existing circumstances, and not on possibilities.’”

The imputation of income to the former wife was reversed because “The court seem[ed] to have relied on the former wife’s counsel’s statement that she had held minimum-wage employment in the past and as to what he believed minimum wage was. This was insufficient to support the imputed income award. In addition, the former husband did not present any evidence of the former wife’s employability. See Julia v. Julia, 146 So. 3d 516, 522 (Fla. 4th DCA 2012) (recognizing the party seeking that income be imputed bears the burden of showing employability and the availability of jobs).” Finally, the appellate court noted that although the trial court indicated the former wife could apply to extend the durational alimony, “The length of durational alimony cannot be extended except under exceptional circumstances. § 61.08(7), Fla. Stat. (2018). While the former wife could potentially petition for a modification under section 61.14(1)(a), Florida Statutes, [citation omitted] she would have to show a change in circumstances. Arguably, the trial court’s justification for the ten-year durational alimony award – the age of retirement – would not constitute a change in circumstances to support a later modification.”

For many, alimony is necessary in transitioning to life after marriage. This is why it may be important to consult with a Miami divorce attorney before spousal support is decided in your case.