Posted by Nydia Streets of Streets Law in Florida Alimony
What analysis is used to determine if alimony should be paid in a Florida divorce? According to Shouman v. Salama, 6D2023-2585 (Fla. 6th DCA March 10, 2025), there is “a two-step process for determining whether to award alimony in a divorce. In the first step, the court must ‘make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.’ § 61.08, Fla. Stat. [. . .] Once the first step is completed, and provided the trial court finds that there is a need for alimony and an ability to pay by the other party, then the statute instructs the trial court to proceed to the second step. In the second step, the trial court is tasked with ‘determining the proper type and amount of alimony or maintenance’ which requires consideration of ‘all relevant factors’ including, but not limited to, those set forth in section 61.08(2)(a)–(j), Florida Statutes.”
In this divorce case, the former wife appealed the trial court’s denial of alimony, arguing the trial court erred in determining her need and the former husband’s ability to pay. The appellate court noted “the trial court erred in mixing steps one and two, which led to contradictory conclusions on the determination of need. In calculating the Former Wife’s need, the trial court declared that ‘based on the testimony and exhibits present[ed], the Wife’s reasonable monthly need is $4,000 a month.’ That need determination was then immediately contradicted by the trial court’s following conclusion that the ‘Wife did not meet her burden of showing a need for alimony based on her being able bodied, capable of working, and receiving a significant amount from equitable distribution.’”
The court continued “The first step, which requires the trial court to determine the Former Wife’s need for alimony, is not the proper place for the trial court to consider the second step factors set forth in section 61.08(2)(c), (d), and (e). That is so because being able bodied, capable of working, and receiving a large sum in equitable distribution might, in appropriate circumstances, be considered at the second step of the process in determining whether to award alimony and the amount of alimony to be awarded, but they do not affect the calculation of need for alimony which is based on net income and reasonable expenses. Thus, the trial court could not find that Former Wife had no need for alimony, when its own calculations determined she had a monthly need of $4,000.”
The court also concluded that error was made in determining the former husband’s ability to pay where his financial affidavit indicated his expenses were paid by his business. Therefore, he actually had a surplus of funds rather than the deficit indicated on his financial affidavit. The case was remanded to reconsider the alimony denial.
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