Posted by Nydia Streets of Streets Law in Florida Divorce

When a Florida court analyzes need and ability to pay for purposes of awarding alimony, does the analysis stop if the court finds one party does not have the ability to pay alimony? This was an issue in the case Samaniego v. Samaniego, 2D19-3920 (Fla. 2d DCA August 11, 2021).

The parties were married for approximately 22 years by the time the former wife filed her petition for divorce. She requested permanent, rehabilitative and bridge-the-gap alimony, as well as life insurance and payment of her attorney’s fees and costs. At trial, the court found that because the former wife had managed to amass savings while the divorce case was pending, and because the former husband had no savings, the husband did not have the ability to pay alimony. Based on this finding, the court declined to determine whether or not the former wife had a need for alimony. Therefore, her requests for alimony, insurance and attorneys’ fees were denied, and she appealed.

The appellate court agreed that it was error for the trial court to fail to make findings regarding the former wife’s need for alimony. It held “Section 61.08(1) expressly requires that ‘[i]n all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.’ The trial court here was required to make ‘a specific factual determination as to whether’ the former wife had ‘an actual need for alimony or maintenance’ regardless of whether it granted or denied the alimony she sought and regardless of whether it also found that the former husband had an ability to pay.” The court also noted “Moreover, ‘when one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony, which will give the court jurisdiction to reconsider the award should the parties' financial circumstances change.’”

Schedule a consultation with a Miami divorce attorney to get an analysis on whether or not alimony may be awarded in your case.