Posted by Nydia Streets of Streets Law in Florida Divorce

When alimony is calculated in a Florida divorce, does the court consider the expenses a spouse incurs for children born of the marriage? Generally, expenses for children are excluded from consideration in an alimony calculation because these are separately handled via the child support guidelines. This was an issue in the case Hamilton v. Hamilton, 1D20-1019 (Fla. 1st DCA October 13, 2021).

In the parties’ divorce case, issues the court had to resolve included alimony, child support and equitable distribution. The trial court ordered the former husband to pay $2,000 per month in alimony plus $139 in child support. The court also distributed the parties’ assets and debts as part of equitable distribution, classifying as non-marital $50,000 in credit card debt incurred in the former husband’s name. The former husband appealed, arguing there was an unequal distribution without justification and that the alimony award was made in error.

Discussing the equitable distribution first, the appellate court held “Here, debts existed on multiple personal credit cards held in [the former husband’s] name that were used to pay both household expenses and the expenses of running [the former husband’s] solo accounting practice (which is itself a marital asset). At the hearing, no attempt was made to separate the household debts from the business debts. In turn, the court concluded that the debt was non-marital corporate debt in view of [the former husband’s] ‘fail[ure] to present any evidence to allocate any portion of this debt as marital.’ We reverse this determination to exclude the debts from the equitable distribution scheme because it flips the statutory presumption that ‘[a]ll assets . . . not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities.’ § 61.075(8), Fla. Stat. From the record, we see no evidence specifically establishing these personal credit card debts as nonmarital liabilities, or a basis for excluding them from the equitable distribution scheme.”

Turning to the alimony calculation, the appellate court found there was double-counting as it related to the child’s health insurance premium. The court held “On the other issue of whether record support exists underlying the alimony award, we agree with [the former husband] that there is a double counting error. Specifically, the court credited [the former husband’s] financial affidavit showing a monthly deficit of $2,015, which included a $234 per month expense for the minor child’s health insurance. But the child’s health insurance expense was also incorporated into the child support guidelines calculation. This is problematic because alimony awards that include expenses for children that are already accounted for in a child support award create an impermissible double counting.” As to the former husband’s claim that the court did not make sufficient findings to support the alimony award, the court found this argument was not preserved for review because the former husband did not raise it in his motion for rehearing. However, the court found that there was no record support for the income figures imputed to him for purposes of calculating alimony. Therefore the case was remanded for the trial court to correct these figures.

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