Posted by Nydia Streets of Streets Law in Florida Divorce
How are temporary alimony and attorney’s fees decided in a Florida divorce? A ruling on these issues must be supported by competent, substantial evidence. A court will look at the need of the spouse asking for these temporary amounts and the ability of the other spouse to pay them.
In Alizzi v. Alizzi, 4D22-1183 (Fla. 4th DCA November 9, 2022), the parties separated while in their late 60s after a 23-year marriage. The wife used much of her liquid assets to purchase a home with her daughter and to pay her attorney’s fees and costs while the case was pending. At the time of the temporary relief hearing, the wife’s assets had dwindled considerably. At the hearing, an expert hired by the wife testified that the wife’s need was over $10,000 per month which included $7,000 for rent for a fully furnished apartment. Her expert acknowledged this need was not actual since she was not currently renting an apartment, but it was consistent with the lifestyle established during the marriage. The trial court ultimately awarded the wife about $1,000 per month, citing her gift of $75,000 to her daughter for the purchase of a home. The court also denied her request for temporary attorney’s fees. The wife appealed.
The appellate court agreed with the husband that the wife failed to establish her need at the $10,000 requested. It held “On the temporary monthly support issue, we agree with the circuit court’s finding that the wife’s requested financial need of $10,174 per month, including $7,000 for monthly rent, was not supported by competent substantial evidence. As the wife’s forensic account candidly acknowledged, those amounts were not based on the wife’s actual expenses, but the wife’s anticipated expenses. [. . .] The wife has not resided in, nor did the evidence indicate she will reside in, a furnished rental apartment which would cost $7,000 per month. Instead, the wife chose to give her daughter $75,000 towards a down payment on a larger four-bedroom house in which both of them now reside, and the wife is paying her daughter $1,800 monthly for rent and utilities. The wife’s argument that she was entitled to additional temporary support solely based upon the standard of living during the marriage lacks merit. See Donoff v. Donoff, 940 So. 2d 1221, 1225 (Fla. 4th DCA 2006) (‘The standard-of-living is not a super-factor in setting the amount of alimony—trumping all others. … When the living standard during marriage was significantly high and the payor has the ability to pay more than minimum wage (so to speak), its purpose is to avoid having alimony set at bare subsistence levels.’).”
As to temporary attorney’s fees, the court held “A review of the wife’s financial affidavits indicates that the wife’s reported $3.8 million net worth was comprised of the jointly titled marital home—valued at approximately $3.5 million—which the husband continued to occupy after the parties’ separation, and other alleged marital assets. Because those assets are not available to the wife as sources to pay her attorney’s fees and costs, the circuit court erred in considering those assets in denying the wife’s request for the husband to pay any portion of the wife’s temporary attorney’s fees and costs.”
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