Posted by Nydia Streets of Streets Law in Florida Alimony
When nominal alimony is awarded in a Florida divorce, the alimony recipient may wonder when it is time to petition for an increase in alimony. This was an issue in the case Cipollina v. Cipollina, 2D22-28 (Fla. 2d DCA January 19, 2024).
The parties’ final judgment awarded the former wife nominal alimony. At the time of the divorce, the former husband was involuntarily unemployed because technology advances eliminated his position. The year following their divorce, the former wife filed a petition for modification of alimony alleging that the former husband had not made good faith efforts to find comparable employment to that which he held before the divorce was finalized. At a hearing on her petition, the former wife did not present evidence of jobs available to the former husband. The former husband presented evidence that his business was operating at a loss, and that he invested his portion of the parties’ equitable distribution into the business and had not yet broken even. He further testified that he could not gain employment in his prior field because of his age and other factors. The trial court sided with the former wife and awarded her increased alimony. The former husband appealed.
The appellate court reversed, holding “The former husband argues on appeal that the former wife ‘simply failed to meet her burden of proving there had been a substantial change of circumstances so as to establish the [f]ormer [h]usband now has the ability to pay support.’ We agree. None of the former wife's evidence established a substantial, material change warranting modification. The evidence established that the former husband's handyman business is operating at a loss; and the former wife presented no evidence that the depreciation values should not be considered. The testimony and evidence presented by the former wife established that there has been no change as required by the statute, and ‘while the trial court may properly consider the former husband's assets in determining his ability to pay, the court cannot require the former husband to deplete assets to make alimony payments.’”
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