Florida divorce: Credit for payments made for a spouse's living expenses during the pendency of a case

Posted by Nydia Streets of Streets Law in Florida Divorce

When a spouse pays expenses for the other spouse while a divorce is pending such as mortgage, utilities and other living expenses, that spouse should receive credit for those payments toward retroactive support ordered. This was an issue in the case Warner v. Warner, 5D2024-1274 (Fla. 5th DCA October 3, 2025).

The parties were married for almost 23 years by the time a petition for divorce was filed. The former husband worked as a Certified Registered Nurse Anesthetist (CRNA) during the marriage. For a period of time, he owned his own business and worked as a CRNA through this business which brought him about $250,000 in annual income. He testified at trial that he closed the business and determined it was best to go back to working for a hospital because he needed benefits such as health insurance for himself and his family, and he needed more stable and reliable payments. His hospital income was about $150,000 per year.

The former wife was found to have a need of over $7,000 per month for alimony. This included food for herself, the parties’ minor child and one adult child still living in the home. The evidence indicated that while the divorce case was pending, the former husband paid several expenses for the former wife including the mortgage, electric, waste, water, car payments, and car insurance. During the pendency of the case, the former husband also withdrew funds from marital accounts to pay for expenses related to the divorce including repairs to the home, medical expenses and attorney’s fees.

The trial court imputed income to the former husband, finding he was voluntarily underemployed and could earn $250,000 if he returned to working for himself. The court also awarded the former wife alimony and child support based on this imputation, and ordered that retroactive support be paid to the former wife without giving the former husband credit for any of the payments toward the former wife’s living expenses he made while the case was pending. Finally, the trial court found the former husband dissipated the retirement account and ordered that he repay this dissipation through equitable distribution. The former husband appealed on these issues.

First as to imputation of income, the appellate court found that the trial court did not follow the statutory steps in determining imputation of income, namely: “‘To impute income to an underemployed spouse, the court must make two findings: (1) that the termination of income was voluntary; and (2) “the spouse’s underemployment was owing to ‘less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.’ Frerking v. Stacy, 266 So. 3d 273, 276 (Fla. 5th DCA 2019).”

The court held “We conclude the trial court erred when it imputed income to Former Husband for two reasons. First, assuming without deciding that Former Husband was voluntarily underemployed by leaving his self-employment, there was no competent, substantial evidence to establish the income he could earn if he returned to self-employment. Second, the trial court erred when it imputed $220,499.24 to Former Husband based on his past average earnings. See Jorgensen v. Tagarelli, 312 So. 3d 505, 506–07 (Fla. 5th DCA 2020) (holding that it was error to impute income to former wife in an amount that was based solely on her past earnings when there was no evidence of wife’s current earning ability) [. . .].” What is more, the court held “In addition, the trial court erred in finding that Former Wife needed $7,433 per month when that figure included $1,160 for Former Wife’s food expenses, which she admitted included food for [the parties’ minor child] and their adult child who was living in the home.” The case was therefore remanded for the court to recalculate income for alimony and child support, as well as the former wife’s actual need.

Turning to retroactive child support, the appellate court noted “When determining the retroactive award, section 61.30(17)(b) requires the court to consider ‘[a]ll actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.’ The obligor parent is entitled to credit for payments made during the retroactive period that would qualify for such a credit under section 61.30(17)(b).” The court held “Here, Former Husband testified that he moved out of the marital home in February 2023 and, at that time, he began paying all of the marital bills. He estimated that he paid approximately $3,000 per month for Former Wife’s expenses, which included the mortgage, electric, water, waste, and Former Wife’s car payment and car insurance. It was undisputed that Former Husband did not pay child support to Former Wife from February 2023 through the time of the temporary support hearing. There is no question that Former Husband’s payment of the marital bills benefitted the minor child who was living with Former Wife during that time. Therefore, under section 61.30(17)(b), the trial court should have given Former Husband credit for those payments when determining the amount of retroactive child support that he owes to Former Wife.”

Last, turning to the issue of dissipation, the appellate court first noted “In general, ‘It is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings.’ Roth v. Roth, 973 So. 2d 580, 584 (Fla. 2d DCA 2008). However, one party’s misconduct during the dissolution proceedings, which results in dissipation of a marital asset, ‘may serve as a basis for assigning the dissipated asset to the spending spouse when calculating equitable distribution.’ Id. at 584–85. ‘The misconduct necessary to support inclusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves.’ Id. at 585. Rather, ‘there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset.’ Id. The use of a marital asset ‘out of necessity and for reasonable living expenses does not justify an award of a depleted asset absent evidence of misconduct.’ Lopez v. Lopez, 135 So. 3d 326, 328 (Fla. 5th DCA 2013).”

The court concluded “As Former Husband correctly asserts, there is no record evidence supporting the trial court’s finding that he committed misconduct when he removed money from the retirement accounts. The only evidence on the subject came from his testimony. He explained that he used the funds withdrawn from those accounts to pay marital bills, his own medical and living expenses, and the costs associated with the divorce, including both his and Former Wife’s attorney’s fees. While he admitted that he did not obtain permission from the court or from Former Wife before removing the money, there was absolutely no evidence that he intentionally dissipated or destroyed the money from the retirement accounts necessary to support a finding of misconduct. Therefore, the trial court erred in valuing the Brookstone IRA and the Lincoln Retirement Account at the time the case started.”

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