Posted by Nydia Streets of Streets Law in Florida Divorce

Alimony and equitable distribution may be part of a Florida divorce case. Florida Statute Chp. 61.08 governs alimony awards, while Florida Statute Chp. 61.075 governs equitable distribution. Consideration of factors in these statutes is required when deciding these issues, Alimony and equitable distribution were issues in the case Duhamel v. Duhamel, 2D2022-4145 (Fla. 2d DCA April 26, 2024).

By the time the former wife filed her petition for divorce, the parties were married for almost thirty years. The former wife was a homemaker, while the former husband was the sole earner for the family. A final judgment was entered in 2019 which was appealed. As a result another trial was held and another final judgment was entered in 2022. The trial court granted alimony to the former wife and ordered that it be taxable to her. The court based the alimony award in 2022 on the financial circumstances of the parties as of July 2018. Additionally, the court valued the former husband’s retirement account as of 2015 which resulted in the former wife being denied passive appreciation on the account that occurred after this date. The former wife appealed.

First with regard to the taxability of the alimony, the appellate court reversed, holding “The Wife correctly argues that the trial court erred in ordering that her monthly alimony is taxable as income following the repeal of the applicable provision of the Internal Revenue Code. See Tax Cuts and Jobs Act, Pub. L. No. 115-97, 131 Stat. 2054 (2017) (repealing 26 U.S.C. § 71, which had addressed special tax treatment for alimony and maintenance payments) (the Act). The Act specifically provides that it applies to ‘any divorce or separation instrument . . . executed after December 31, 2018.’ Id.”

With regard to the amount of alimony, the appellate court held the trial court should have considered the financial circumstances of the parties at the time the final judgment was entered in 2022. If it had, it would have found the former husband had a greater ability to pay alimony than he did in July 2018. The court also noted that the evidence did not support the finding that the former wife had a need of only $2,500 per month where her financial affidavit indicated otherwise. The court ordered “On remand, the trial court may consider the most recent affidavits of the parties, and the parties shall have an opportunity to present additional evidence based on conditions as may then exist.”

Finally, as the retirement account, the court held “ Here, the Wife points to record evidence reflecting passive appreciation in the Husband's retirement accounts, to which she claims some entitlement. By choosing valuation dates in 2015, the trial court erroneously denied the Wife of several years of passive appreciation that accrued in the accounts.”

Schedule your meeting with a Miami family law attorney to understand your rights and remedies in your case.