Posted by Nydia Streets of Streets Law in Florida Alimony
When a modification of Florida alimony is sought, there are different considerations from those applied when alimony is originally ordered. Establishment of alimony is governed by Florida Statute 61.08 which modification of alimony is governed by Florida Statute 61.14. This was an issue in the case Beans v. Beans, 1D2021-3358 (Fla. 1st DCA September 18, 2024).
The parties were divorced by final judgment which adopted a marital settlement agreement. In the agreement, the former husband promised to pay $3,000 per month in permanent alimony, and the agreement acknowledged that the former husband was due to retire from the military the following year while requiring the parties to attend mediation if a modification petition was filed on this issue. The former husband did retire as expected and moved to modify alimony. While his petition was pending, the former wife agreed to accept nominal alimony from the former husband.
The trial court analyzed the financial positions of both parties and found the former husband had a positive net worth and a monthly surplus after expenses. It found that the former wife on the other hand had significant debt that accrued while the former husband was paying nominal alimony. The court granted the former husband’s petition for modification and reduced his payment to $1,869 per month, and awarded the former wife over $20,000 in retroactive alimony and over $14,000 in attorney’s fees. The former husband appealed, arguing the alimony was not reduced enough, that the payment left the former husband with less net income than the former wife, and that he should not be required to invade assets to pay alimony.
The appellate court affirmed, holding the former husband’s arguments were rooted in application of Florida Statute 61.08 rather than 61.14. Florida Statute 61.14 does not require the court to consider the relative net incomes of the parties. The court held “Rather than treat David’s petition as a request for a do-over, the court took the parties where it found them and considered the entirety of what occurred to bring them there. The court ultimately drew on the factors set out in section 61.08(2), but its consideration of ‘the financial resources of each party,’ each party’s ‘sources of income,’ and ‘other factor[s] necessary to do equity and justice between the parties,’ including the parties’ respective standards of living relative to their shared standard of living during the marriage, closely tracked what section 61.14 requires for a modification—to an extent that ‘equity requires,’ with ‘due regard to the changed circumstances or the financial ability of the parties.’”
The court concluded regarding former husband’s argument that he would need to deplete assets to cover alimony: “The circuit court did grant David’s request to modify, and it reduced the alimony payment by nearly 37 percent. In making the reduction, the circuit court considered David’s available assets—that is, his overall financial situation—but did not contemplate or require David to function with no income, drain his bank accounts, take out a loan, or exhaust his other assets. In fact, that is not what David even argues is the error. His complaint is that despite the modification, he will have to draw on some of his positive net worth, and not just his income, to cover his revised obligation to Amy. To adopt a rule like David urges would be to allow a payor spouse to bank unpaid alimony for a time, under the auspices of financial stress, then request a modification and escape the payee spouse’s claim to the accreted assets for back-alimony owed.”
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