Alimony

[a] In General.

A trial court is authorized by statute to award alimony to either party in a proceeding for dissolution of marriage [Fla. Stat. 61.08(1)]. The court has jurisdiction to award alimony if it has been requested in the pleadings or if the issue has been tried by consent of the parties [Palumbo v. Palumbo, 576 So. 2d 799, 800 (Fla. 1st DCA 1991); Kratzer v. Reimiller, 552 So. 2d 1188, 1188 (Fla. 5th DCA 1989); see Hemraj v. Hemraj, 620 So. 2d 1300, 1301 (Fla. 4th DCA 1993) (when alimony not specifically demanded in pleadings, issue tried by implied consent)]. Both husband and wife have an equal right to support [see, e.g., Nurse v. Nurse, 578 So. 2d 865, 866867 (Fla. 2d DCA 1991)]. Court-ordered alimony may be rehabilitative or permanent in nature [Fla. Stat. 61.08(1)]. The court may order periodic payments, lump-sum payments, or both [Fla. Stat. 61.08(1)].

[b] Reservation of Jurisdiction to Award Alimony.

If a final judgment of dissolution grants alimony, either party may petition the court to increase or decrease the amount of alimony in a later modification proceeding [Fla. Stat. 61.14(1); see Ch. 80, Modification of Alimony]. However, if a final judgment of dissolution makes no provision for alimony, the trial court does not have jurisdiction to award alimony in a subsequent proceeding unless the judgment includes an express reservation of jurisdiction to award alimony [Gosline v. Gosline, 435 So. 2d 413, 414 (Fla. 5th DCA 1983)]. A trial judge who refuses to award alimony in the final judgment of dissolution should reserve jurisdiction if a change of circumstances might occur in the future that would warrant an award of alimony [Brown v. Brown, 440 So. 2d 16, 19 (Fla. 1st DCA 1983), review denied, 459 So. 2d 1039 (Fla. 1983)]. Without such a reservation, the court has no subject matter jurisdiction to grant alimony in a subsequent action, even if the party seeking alimony presents sufficient evidence of a substantial change of circumstances [Turner v. Turner, 383 So. 2d 700, 703 (Fla. 4th DCA 1980)].

A trial court abuses its discretion if it refuses to reserve jurisdiction to award alimony if the record reflects a disparity in the parties’ earning abilities and resources [see Eckroade v. Eckroade, 570 So. 2d 1347, 1348 (Fla. 3d DCA 1990)]. For example, a failure to reserve jurisdiction may be error if the record shows that one spouse ordinarily has a superior earning capacity but is temporarily unemployed or underemployed and therefore unable to pay alimony [see Blanchard v. Blanchard, 793 So. 2d 989 (Fla. 2d DCA 2001); Strahan v. Strahan, 605 So. 2d 1316, 1316 (Fla. 4th DCA 1992)]. However, a trial court does not abuse its discretion in failing to reserve jurisdiction to award alimony if reasonable persons could differ as to the propriety of the court’s failure to reserve jurisdiction [see Burdick v. Burdick, 601 So. 2d 632, 634 (Fla. 4th DCA 1992)]. Further, a trial court may not reserve jurisdiction to award more alimony in the future based solely on a finding that the obligor has not reported all of his or her income. For a reservation of jurisdiction based on unreported income to be valid, the court must make findings concerning the probable source and amount of the obligor’s current and potential income, and must reserve jurisdiction to modify alimony if a substantial change in circumstances occurs after entry of the final judgment of dissolution [see Narcis v. Narcis, 707 So. 2d 936, 937 (Fla. 3d DCA 1998)].

A reservation of jurisdiction to award alimony must be limited in duration if there is no potential claim for permanent alimony due to circumstances such as the obligee’s youth or the duration of the marriage [see Herman v. Herman, 889 So. 2d 128 (Fla. 1st DCA 2004)]. In such a case, the trial court must establish a reasonable time limit on the reservation. A failure to do so is unfair to the obligor spouse, who is burdened with the possibility of being required to pay alimony in the future for an indefinite time [see Herman v. Herman, 889 So. 2d 128 (Fla. 1st DCA 2004)]. For example, in one case the district court approved a reservation of jurisdiction to award alimony to a wife with health problems that might worsen in the future, but reversed the reservation to the extent it reserved jurisdiction indefinitely. Specifically, the appeals court held that reserving jurisdiction to award alimony was proper because the wife had been diagnosed with a kidney disease during the marriage and there was a reasonable probability that she would have medical problems requiring her to receive support in the future. However, the court held, the trial court erred in failing to impose a reasonable time limit on the reservation, because the parties were young and were married for a relatively short time, and thus there was no potential claim for permanent alimony. Further, the wife’s medical problem would arise, if at all, within the next several years [see Herman v. Herman, 889 So. 2d 128 (Fla. 1st DCA 2004)].

As an alternative to reserving jurisdiction, a court may make a nominal award of alimony for the purpose of retaining jurisdiction for future modifications [see, e.g., Brewer v. Brewer, 898 So. 2d 986 (Fla. 2d DCA 2005); Zohourian v. Zohourian, 829 So. 2d 256, 257 (Fla. 3d DCA 2002); Burdick v. Burdick, 601 So. 2d 632, 634 (Fla. 4th DCA 1992); but see O’Neal v. O’Neal, 407 So. 2d 1011 (Fla. 5th DCA 1981) (disapproving nominal awards of alimony to maintain jurisdiction and stating that jurisdiction should be expressly reserved if need for or ability to pay alimony is not present at time final judgment is entered)]. A trial court errs if it fails to award nominal alimony and circumstances of the case would ordinarily have warranted an award of permanent alimony because of the long duration of the parties’ marriage, their standard of living during the marriage, the husband’s ability to work, and his earning potential [see Misiak v. Misiak, 898 So. 2d 1159 (Fla. 3d DCA 2005) (trial court abused its discretion in failing to award nominal alimony to homemaker-wife because although 58-year-old husband had left his high-paying position in technology and defense industry with wife’s consent after he had heart bypass surgery, and although he had been unable to secure employment since recovering from surgery, nominal alimony was required due to other circumstances of case)]. Even if the obligor’s ability to work is uncertain, if he or she has retained any earning capacity and is not physically incapacitated, the trial court should award nominal alimony to accommodate the possibility the obligor’s financial circumstances will improve and the obligee will have grounds to petition for modification [see Brewer v. Brewer, 898 So. 2d 986 (Fla. 2d DCA 2005) (trial court abused its discretion in terminating alimony rather than awarding nominal alimony, because circumstances of case, including parties’ 18-year marriage, presented “textbook facts” justifying reduction of alimony to nominal sum and preserving wife’s ability to petition for modification if husband’s income improved or he received assets that could be used to support wife)].

Alimony Unconnected with Dissolution of Marriage

Even if dissolution proceedings have not been brought, a court may award alimony to a married person if that person’s spouse is financially able to contribute to his or her support and maintenance but fails to do so [Fla. Stat. 61.09]. The spouse who is not receiving needed support may apply to the court for an order requiring the payment of alimony [Fla. Stat. 61.09]. The application for support need not include a request for dissolution of the marriage [Fla. Stat. 61.09]. For more detailed coverage of spousal support payments ordered in the absence of dissolution.

Effect of Parties’ Agreement

The parties themselves may set the amount and terms of alimony in a marital settlement agreement. Likewise, the parties may specifically waive the right to claim alimony in a marital settlement agreement [see Albright v. Albright, 788 So. 2d 1125, 1128 (Fla. 4th DCA 2001); McKenna v. McKenna, 220 So. 2d 433, 434 (Fla. 3d DCA 1969)].

The court will ordinarily incorporate the parties’ agreement in the final judgment of dissolution [see Posner v. Posner, 257 So. 2d 530, 532534 (Fla. 1972); Del Vecchio v. Del Vecchio, 143 So. 2d 17, 2021 (Fla. 1962)]. An agreement that is so incorporated rises to the dignity of a judgment and its provisions may be enforced in the same manner as a judgment [Wyrick v. Wyrick, 722 So. 2d 914, 916 (Fla. 2d DCA 1998); Davis v. Fisher, 391 So. 2d 810, 811 (Fla. 5th DCA 1980), review dismissed, 397 So. 2d 777 (Fla. 1981)]. By contrast, only contract remedies are available to enforce the alimony provisions of a settlement agreement that has not been incorporated into the final judgment [see Rosenberg v. Rosenberg, 452 So. 2d 620, 621 (Fla. 3d DCA 1984), review dismissed, 458 So. 2d 273 (Fla. 1984)].

A trial court must make findings of fact regarding an alimony award even if the parties agree to a spouse’s entitlement to permanent periodic alimony, but leave to the court’s discretion the amount awarded [see McCarty v. McCarty, 710 So. 2d 713, 713715 (Fla. 1st DCA 1998)].

In making a settlement agreement, each party has a duty to exercise a high degree of good faith and candor [see Posner v. Posner, 257 So. 2d 530, 535 (Fla. 1972); Del Vecchio v. Del Vecchio, 143 So. 2d 17, 21 (Fla. 1962)]. A party who seeks to set aside an agreement must prove either of the following facts:

1. That the agreement was induced through fraud, duress, overreaching, coercion, or misrepresentation [see Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987)].
2. That the agreement is unfair or unreasonable and presumptively was based on less than full disclosure [see Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987); Del Vecchio v. Del Vecchio, 143 So. 2d 17, 20 (Fla. 1962)].

However, if the parties entered into a settlement agreement after the filing of a dissolution action, nondisclosure of finances may not be available as a ground on which to attack the agreement [see Petracca v. Petracca, 706 So. 2d 904, 911912 (Fla. 4th DCA 1998)]. When the parties are in litigation over marital property rights, no fiduciary arrangement exists between them and neither party can claim to be inadequately informed of the other party’s financial affairs, particularly when extensive discovery has been conducted. The courts, in determining the enforceability of such agreements, cannot question the fairness of the agreement, but may hear evidence demonstrating fraud, misrepresentation in discovery, or coercion [see Petracca v. Petracca, 706 So. 2d 904, 911912 (Fla. 4th DCA 1998) (“[i]f parties choose to settle a case without fraud or coercion after adequate opportunity to engage in discoveryfrom which ample knowledge must be presumedthey should not be heard to assail the relative fairness of the bargain’)].

Termination of Alimony

An award of permanent periodic alimony terminates on the death of either spouse or the remarriage of the recipient spouse [Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1980)]. A trial court may also terminate a permanent periodic alimony award on the request of the payor if there has been a substantial change in circumstances such that the recipient no longer requires support or the payor no longer has the ability to pay the designated amount [Fla. Stat. 61.14(1)]. However, the court may not provide in the original decree for a termination of the award based on the anticipated occurrence of an uncertain future event [Davidson v. Davidson, 410 So. 2d 943, 949 (Fla. 4th DCA 1982)]. Further, the court may not provide for automatic termination of alimony or require review merely because a certain time period has elapsed [Thilem v. Thilem, 662 So. 2d 1314, 1316 (Fla. 1995)].

A court may terminate permanent periodic alimony if an event occurs that terminates alimony under the terms of the final judgment of dissolution or a settlement agreement [see Alford v. Alford, 594 So. 2d 843, 844 (Fla. 5th DCA 1992)]. For example, if the parties have specified in a settlement agreement that alimony will terminate on the recipient spouse’s cohabitation with a third party, the payor spouse may petition the court to terminate alimony on the occurrence of the event [see Alford v. Alford, 594 So. 2d 843, 844 (Fla. 5th DCA 1992)]. The payor-spouse may not unilaterally terminate alimony payments without a court order finding that the payee’s living arrangements constitute “cohabitation” within the meaning of the parties’ marital settlement agreement. Cohabitation is not an indisputable, objective occurrence of the type that may be allowed to automatically terminate alimony [Robinson v. Robinson, 788 So. 2d 1092 (Fla. 4th DCA 2001)]. If the trial court decides that termination based on cohabitation by the payee-spouse is warranted under the terms of the parties’ agreement and the final judgment of dissolution, then the termination is effective from the date on which the petition for modification is filed if the basis for termination existed on that date [see Alford v. Alford, 594 So. 2d 843, 844 (Fla. 5th DCA 1992)]. In the absence of an agreement between the parties to terminate alimony on cohabitation of the obligee-spouse, the court may not provide in the final judgment of dissolution that alimony will terminate on cohabitation [Dibartolomeo v. Dibartolomeo, 679 So. 2d 72, 73 (Fla. 4th DCA 1996), see Buscemi v. Buscemi, 610 So. 2d 674, 674 (Fla. 2d DCA 1992); Alford v. Alford, 594 So. 2d 843, 844 (Fla. 5th DCA 1992)].

Modification of Alimony

If a final judgment of dissolution provides for permanent periodic alimony, either party may apply to the court for modification of the alimony award [Fla. Stat. 61.14(1)(a)]. A court may not modify alimony unless one of the parties has petitioned for modification [see Sweetland v. Gauntlett, 460 So. 2d 570, 570 (Fla. 3d DCA 1984)].

An application to modify alimony may be filed with the circuit court that made the award or with the court for the circuit in which either party resides at the time application is made [Fla. Stat. 61.14(1)(a)]. If the award is based on an agreement made by the parties, the application for modification may also be filed in the circuit in which the agreement was executed or in which either party resided at the time it was executed [Fla. Stat. 61.14(1)(a)].

A party who seeks modification of alimony must demonstrate that there has been a substantial change in the circumstances or financial ability of one or both parties since the award was made [Fla. Stat. 61.14(1)(a)]. A substantial change in the needs of the payee spouse, or in the payor’s ability to pay, will also justify a modification of alimony [Fla. Stat. 61.14(1)(a); see 31.05]. The burden of proof that applies to the party who seeks modification is greater if the original award was based on the parties’ agreement [Pimm v. Pimm, 601 So. 2d 534, 537 (Fla. 1992); Pollock v. Pollock, 722 So. 2d 283, 285 (Fla. 5th DCA 1998); Wolfe v. Wolfe, 424 So. 2d 32, 35 (Fla. 4th DCA 1982)].

Florida Statutes Section 61.14(1)(b) allows a court to reduce or terminate an alimony obligation if, since the time the original alimony award was made, the obligee has commenced residing in a “supportive relationship” with another person who is not related by consanguinity or affinity to the obligee [see 61.14(1)(b)1.2., Fla. Stat.]. The statute lists factors a trial court must consider in deciding whether a supportive relationship exists, and expressly states that evidence of conjugal relations is not required to establish a supportive relationship [see 61.14(1)(b)2.3., Fla. Stat.]. For further discussion of Section 61.14(1)(b), see Chapter 80, Modification of Alimony.

The court in which the application for modification is filed has the power to enter a judgment that increases, decreases, terminates, or confirms the amount of the original alimony award [ 61.14 (1)(a), Fla. Stat.]. The court may also make other orders as are necessary to achieve an equitable result between the parties [Fla. Stat. 61.14(1)(a)]. Once an alimony award is modified, the original award is no longer subject to enforcement and the payor spouse must pay the amount of alimony required by the new award [Fla. Stat. 61.14(2)].

A court may reduce alimony pursuant to an application for modification regardless of whether arrearages exist under the original order at the time modification is sought [Fla. Stat. 61.14(4); Dykes v. Dykes, 712 So. 2d 1189, 119394 (Fla. 1st DCA 1998); Martin v. Martin, 256 So. 2d 553, 554 (Fla. 4th DCA 1972)]. However, payments that accrue under a final alimony award are vested property rights of the payee [Dykes v. Dykes, 712 So. 2d 1189, 1193 (Fla. 1st DCA 1998); Smithwick v. Smithwick, 343 So. 2d 945, 947 (Fla. 3d DCA 1977)]. Thus, a court cannot retroactively modify a final alimony award. That is, even if the court grants a downward modification of alimony, the payor remains liable for all payments that accrued under the original order up to the date the application for modification was filed [Dykes v. Dykes, 712 So. 2d 1189, 119394 (Fla. 1st DCA 1998); Jennings v. Jennings, 392 So. 2d 352, 353 (Fla. 4th DCA 1981)]. .

Statutory Criteria

Factual Findings.

The trial court is required by statute to make findings of fact relative to the relevant factors that support an award or denial of alimony [Fla. Stat. 61.08(1)]. This requirement is necessary to enable an appellate court to determine whether the court’s findings and conclusions are correct or whether the court abused its discretion by entering the alimony award. If the findings are not made, an appellate court may reverse an alimony award and remand the case to the trial court for findings of fact [see Nieboer v. Nieboer, 816 So. 2d 1259, 1261 (Fla. 2d DCA 2002); Woodard v. Woodard, 634 So. 2d 782, 783 (Fla. 5th DCA 1994); Moreno v. Moreno, 606 So. 2d 1280, 1281 (Fla. 5th DCA 1992)]. Findings of fact concerning the statutory alimony factors are required even if the parties stipulate to entitlement and litigate only the amount of alimony [McCarty v. McCarty, 710 So. 2d 713, 713 (Fla. 1st DCA 1998)]. If the parties’ marriage was long-term and the trial court denies alimony, it is especially important for the court to set forth factual findings to overcome the presumption that permanent periodic alimony should have been awarded [Schomburg v. Schomburg, 845 So. 2d 257 (Fla. 2d DCA 2003)]. The court must make factual findings concerning all the statutory factors [see Fla. Stat. 61.08(2)] and must verbalize its application of the factors, including an indication of the weight it gave to each factor [see Ondrejack v. Ondrejack, 839 So. 2d 867 (Fla. 4th DCA 2003)].

An appellate court may insist on factual findings, even if the issue is not raised on appeal, because such findings are primarily intended to make appellate review more meaningful [see Kennedy v. Kennedy, 622 So. 2d 1033, 1035 (Fla. 5th DCA 1993)]. However, when a trial court makes findings as to some but not all of the statutory factors, reversal is appropriate only if the factors omitted were relevant or were the primary basis for the trial court’s decision [Killius v. Killius, 701 So. 2d 1245, 1246 (Fla. 1st DCA 1998)].

Despite an express statutory directive to include findings in making an alimony award [see 61.08(1)(2), Fla. Stat.], and despite general adherence to that statutory mandate by the courts [see, e.g., Perrin v. Perrin, 795 So. 2d 1023 (Fla. 2d DCA 2001)], the Third District Court of Appeal in one case refused to reverse a trial court’s award of permanent periodic alimony despite a lack of findings in the final judgment of dissolution [see Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001)]. The Third District held that reversal was not required because the obligor-husband failed to request findings at trial and did not file a motion for rehearing to ask for findings after the judgment was entered [see Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001)]. Thus, the district court appeared to engraft new requirements onto those of the alimony statute. Specifically, pursuant to the Third District’s decision a lack of findings will be a basis for reversal only if (1) one of the parties requests findings; if neither party asks for findings, a lack of findings will compel reversal only if the record is unclear regarding the basis for the alimony award; and (2) if the trial court refuses to make findings despite a request by one of the parties, the party must request a rehearing on the issue or appellate review will not be undertaken [see Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001)]. The Fifth District Court of Appeal has adopted the Third District’s rule and said that it will not allow a party to complain on appeal about inadequate findings in a dissolution of marriage judgment unless the alleged defect was brought to the trial court’s attention in a motion for rehearing. However, the Fifth District noted, it also may send a case back to the trial court for findings to assist in appellate review [see Mathieu v. Mathieu, 877 So. 2d 740 (Fla. 5th DCA 2004) (court calls possibility of remand for findings a “caveat” to its decision)].

Findings of fact pertaining to an award of alimony must be in writing fact [see Jacques v. Jacques, 609 So. 2d 74, 7576 (Fla. 1st DCA 1992)]. The court found that written findings serve three purposes. First, the findings are necessary because the reasons for an award that an appellate court derives from the record may not be the same reasons that the trial judge would advance were he or she required to put those reasons in writing. Second, the appellate court should not be forced to wade through lengthy transcripts to locate findings that would support an order. Third, the development of the law is best served by requiring the precise and considered reasons that are more likely to be advanced in a written statement than in oral pronouncements at a hectic hearing [see Jacques v. Jacques, 609 So. 2d 74, 7576 (Fla. 1st DCA 1992)].

The trial court’s written findings must be specific. A blanket finding that the spouse requesting alimony has satisfied all of the statutory criteria required to establish a need for alimony is not sufficient [Dal Ponte v. Dal Ponte, 692 So. 2d 283, 283284 (Fla. 1st DCA 1997)]. At a minimum, the trial court must make findings relative to the following factors [see Fla. Stat. 61.08(2)]:

1. The standard of living established during the marriage.
2. The duration of the marriage.
3. The age and physical and emotional condition of each party.
4. The financial resources of each party, including the marital and nonmarital assets and liabilities distributed to each.
5. If applicable, the time necessary for either party to acquire sufficient education or training to enable that party to find appropriate employment.
6. The contribution of each party to the marriage, including services rendered in homemaking, child care, education, and career building of the other party.
7. All sources of income available to either party.

The Fifth District, in an en banc, plurality opinion [see Kennedy v. Kennedy, 622 So. 2d 1033 (Fla. 5th DCA 1993)], suggested that a “doctrine of comparable fairness” should be used to determine if the trial court abused its discretion in awarding alimony. Applying the doctrine, an appellate panel could find that a trial court abused its discretion if an alimony award is unfair as compared to other alimony awards based on similar facts [see Kennedy v. Kennedy, 622 So. 2d 1033, 1035 (Fla. 5th DCA 1993)]. The court derived the doctrine of comparable fairness from the principle that justice requires that parties under similar circumstances receive substantially the same result in litigation [see Kennedy v. Kennedy, 622 So. 2d 1033, 1035 (Fla. 5th DCA 1993)].

The Florida Supreme Court, however, has noted that the doctrine of comparable fairness announced by the plurality in Kennedy v. Kennedy [622 So. 2d 1033 (Fla. 5th DCA 1993)] has appeared in only a single plurality opinion and therefore should not be considered the law of the state [see Kennedy v. Kennedy, 641 So. 2d 408, 409 (Fla. 1994) (per curiam)]. Further, some commentators and jurists might disagree that there is enough consistency among alimony awards to apply the doctrine of comparable fairness. The divergence of views of judges confronted with similar facts in alimony cases has caused Judge Farmer of the Fourth District Court of Appeal to advocate the enactment of statutory guidelines clarifying proper alimony amounts in various circumstances, so that alimony awards in Florida will be rendered more predictable [see Bacon v. Bacon, 819 So. 2d 950 (Fla. 4th DCA 2002) (Farmer, J., concurring specially) (without guidelines or standards, amount of alimony adjudged by majority to be abuse of discretion could appear reasonable to some judges, especially those who consider it reasonable to impute minimum-wage income to party who has not worked in 28 years, but seems otherwise able to do so).