Posted by Nydia Streets of Streets Law in Florida Alimony

When alimony is terminated by the request of a payor because of changed financial circumstances, a court can still award nominal alimony which provides for the possibility that the payor may be able to pay the alimony in the future. Nominal alimony is a small amount which keeps the alimony obligation active for future modification, but is a low or insignificant amount (ex: $1.00 per month). This was an issue in the case O’Brien v. O’Brien, D2023-2446 (Fla. 4th DCA November 6, 2024).

The former husband was previously ordered to pay permanent alimony to the former wife based in part on the fact that he had no housing expense - the former husband was living in a property owned by his mother, rent-free. After entry of the final judgment, the former husband’s mother sold the house and helped him purchase a new residence on which he had to pay expenses such as mortgage, maintenance and taxes. While his income did increase during this period, his expenses also drastically increased, resulting in a significant deficit even before considering his alimony obligation. There was evidence the former husband had a live-in partner who did not contribute to the expenses of the house. The trial court granted the former husband’s petition to terminate alimony and the former wife appealed.

Employing a mixed-standard of review in which legal conclusions were reviewed de novo and factual conclusions were reviewed for an abuse of discretion, the appellate court found “The trial court did not abuse its discretion in finding that the former husband showed a substantial change in circumstances, as his expenses had increased significantly more than his income had increased, leaving him with a substantial deficit.” The court also noted “The former wife also argues that the former husband’s inability to pay alimony is voluntary, because he is supporting his new partner and not requiring her to contribute to his expenses even though she earns income. However, ‘for purposes of the alimony statute, a supportive relationship refers only to a payee’s relationship, not to a payor’s.’ [. . .] Similarly, in this case, no evidence showed that the former husband’s partner was contributing to his living expenses. The former husband testified that his new partner pays her own expenses, including food. No evidence demonstrated that the former husband’s expenses for the home, which he solely owns, were increased because of his new partner’s presence. Thus, apportioning some of the home expenses to the partner and treating it as income to the former husband is not supported by the evidence.”

The court concluded, “The trial court’s determination that the former husband does not have the ability to pay alimony is supported by competent substantial evidence. On this record, which is limited to the testimony of the husband, the court did not abuse its discretion by eliminating his alimony payment. However, the former wife contends that the court abused its discretion in failing to award at least nominal alimony. The court did not discuss nominal alimony, even though the former husband suggested reduction to a nominal amount in closing argument. [. . .] Indeed, the evidence did not show that [the former husband] had no future prospects of either increased income or reduced expenses. The offered evidence suggested the opposite: he did receive raises in his employment, and debts would be paid off. The trial court abused its discretion in failing to award nominal alimony.”

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