Appealing Alimony Awards: The Spouse' Incomes and Is It Retroactive
By Florida Family Law Appeals Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2011
We Can Represent You In Appeals of Alimony Awards Anywhere In Florida
A High Proportion of Divorce Appeals Are About Alimony Awards
In Florida, alimony awards generate the highest proportion of appeals of divorces because, unlike child support guidelines, they have few objective rules,. This lack of objective rules leads to more judicial errors and omissions that are more likely to lead to reversals on appeals of divorce cases. In contrast, time-sharing decisions about child support and custody have more statutory guidelines that a judge can rely upon. The following are the two most important things to know about appeals of alimony awards:
(1) The Imputation of Income To The Employable, Unemployed or Part-time Workers Affects Alimony
First, before judges can even begin to review the eight enumerated alimony factors in Chapter 61.08, Florida Statutes, they must assign incomes to each spouse. When both spouses have full-time work and predictable incomes, this is an easy task.
However, most alimony cases involve one spouse that is either unemployed (but employable) or who only works part-time. When this situation arises, a trial judge must impute an income potential to the spouse with the inferior earning capacity. Now, the judge’s task becomes much more complex.
Appeal courts have ruled that a family courts must base their imputations of incomes on three factors: (a) the spouse’s prior work history, (b) his or her occupational and educational qualifications and (c) the prevailing wages in the spouse’s community.
It must be emphasized that evidence must be presented and reviewed about all three of these criteria. A trial court that ignores just one of these factors commits an error that could lead to a reversal of its decision. Often, a trial court hears evidence on factors (a) and (b), but not on the prevailing wages in the community. As a result, a judge may impute to a spouse a higher income than he or she has ever earned. This overestimation always constitutes a reversible error.
(2) Alimony Can Be Retroactive To The Divorce Petition Filing Date
Second, the question of how much, if any, retroactive alimony should be awarded also has to be answered. A family court must perform the tedious task of reviewing the recipient's need and the payer’s ability to pay during the period between the initial filing of the divorce petition and the trial. A recipient may not have to demonstrate a need during this period in the case of a temporary alimony award that supported him or her during the divorce.
However, if no such support was given, either voluntarily or through a court order, and the spouse’s need and ability were the same during this period as they will be for the future, a family court must award alimony retroactive to the date the divorce litigation started. A court simply denying or ignoring retroactive alimony under these circumstances commits a reversible error. Remember, divorces involving alimony can take several months, if not years to arrive at the trial stage. This results in a large amount of retroactive alimony at stake.
How We Can Help You
If you have any questions about appealing an alimony award, I encourage you to contact AAA Family Law at (407) 260-6001 and schedule an initial consultation. During the consultation I will: (1) listen to your explanation of your reasons to seek an appeal, (2) evaluate the advantages, disadvantages and risks of the appeal and inform you of my conclusions and recommendations, then, or after additional research on the subject and (3) quote you a flat attorney retainer fee, not an hourly rate with an unpredictable total cost to you.
Our retainer fees for family law appeals of final orders in Florida range between $3,600 and $6,000 depending on their level of complexity. For non-final orders they are between $2,400 and $4,800. See Family Lawyer Retainer Fees for more information.
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