Posted by Nydia Streets of Streets Law in Florida Alimony
When parties are married, get divorced, and then marry again, does a Florida court consider the length of both marriages when deciding if alimony should be awarded? This issue was discussed in the recent appellate case Potter v. Potter, 1D20-603 (Fla. 1st DCA March 15, 2021).
The parties were first married for nine years before they divorced. Less than a year after their divorce, they re-married and moved to Florida where the former wife raised the parties’ three children, worked to support the former husband while he attended veterinary school, and then worked at the former husband’s successful veterinary practice. A second divorce was sought in 2018. In awarding alimony to the former wife, the trial took into account the length of the parties’ first marriage in addition to the length of their second marriage. The former husband appealed, arguing the Florida statute 61.08 provides “[t]he length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.”
The appellate court analyzed relevant case law as well as the statute cited by the former husband. Rejecting the former husband’s argument by relying on Florida Supreme Court precedent (Cox v. Cox, 659 So. 2d 1051 (Fla. 1995) which allows a trial court to consider the length of both marriages, the appellate court held “Here, the Legislature provided no indication that it intended to abrogate the supreme court's precedent or our precedent that required trial courts to acknowledge parties' multiple marriages as one marriage for durational analysis under section 61.08(4), Florida Statutes. Thus, where the Legislature declines to abrogate supreme court precedent, and we lack the authority to disobey supreme court precedent, we must reject Appellant's argument.” The court continued “Another rule of statutory construction, which states that courts may not insert words into a statute that the Legislature declined to enact, compels our reading of section 61.08(4), Florida Statutes. Nothing in the statute addresses remarriages or explicitly limits the trial court from combining two marriages between the same parties for alimony determinations.”
The court concluded: “Finally, our third reason for rejecting Appellant's argument is the statute itself. The Legislature has authorized trial courts to consider ‘[a]ny other factor necessary to do equity and justice between the parties.’ See § 61.08(2)(j), Fla. Stat. (2018). Courts have recognized that ‘[t]he nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court.’ Green v. Green, 126 So. 3d 1112, 1114 (Fla. 4th DCA 2012) [internal citation omitted]. And the trial court "possesses broad discretionary authority to do equity between the parties . . . ." Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1980).”
Two marriages can be considered one for the purposes of awarding alimony in Florida. If you have questions about how the law might apply to your case, contact a Miami divorce lawyer for specific guidance.