Posted by Nydia Streets of Streets Law in Florida Alimony

When determining a party’s ability to pay alimony, we usually look to the party’s financial affidavit and examine monthly expenses versus monthly net income. If a party has a surplus after paying reasonable monthly expenses, this is an indication of how much that party can afford in paying alimony. This was an issue in the case Hawryluk v. Hawryluk, 5D21-2405 (Fla. 5th DCA May 19, 2023).

The parties were married in 1993. In 2021, a final judgment of divorce was entered which granted the former wife a total of more than $6,000 per month consisting of durational alimony, child support, equitable distribution, and attorney’s fees. The husband appealed, arguing it was error to award more than he had the ability to pay.

The appellate court agreed with the former husband, holding “The trial court found that Former Husband has a monthly income between $10,000 and $12,000, as well as living expenses of $5,000 per month. Taking the midpoint between $10,000 and $12,000, the court found Former Husband to have a monthly surplus of ‘at least $6,000.00.’ The monthly sum of the support and attorney’s fee award, however, is $6,350.09. ‘[A] trial court cannot enter a . . . [financial] award that exceeds or nearly exhausts a party's income’ because it would abuse its discretion by doing so.’ Williams v. Williams, 10 So. 3d 651, 652 (Fla. 5th DCA 2009) (quoting Bolton v. Bolton, 898 So. 2d 1084, 1084 (Fla. 4th DCA 2005)).” The court concluded “Because the aggregate monthly payments would exceed the amount that the court found to be Former Husband’s monthly surplus (i.e., ability to pay after living expenses), we reverse and order a recalculation of the payment schedule that would bring the monthly aggregate payment within the range of Former Husband’s estimated monthly surplus of $6,000.”

Schedule your meeting with a Miami family law attorney to understand how the law may apply to the facts of your case.