Appealing Alimony Awards
By Florida Family Law Appeals Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2005
AAA Family Law Can Represent You In Family Law Appeals Anywhere In Florida
A Relatively High Proportion of Appeals Are About Alimony
Within Florida family law, alimony awards generate a relatively high proportion of appeals of divorce cases. This is because, unlike child support, which is governed by guidelines, alimony has few objective or precise rules. In contrast, time-sharing decisions about child support and custody have more statutory guidelines that a judge can rely upon.
A couple of judicial errors and omissions are most likely lead to reversals on appeals of divorce cases.
(1) The Imputation of Income To The Employable Unemployed 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 work full-time, and have consistent 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 to the spouse with the inferior earning capacity. Now, the judge’s task becomes much more complex.
Appeal courts have ruled that a trial courts must base their imputations of incomes on three factors: (1) the spouse’s prior work history, (2) his or her occupational and educational qualifications and (3) 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 (1) and (2), 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 trial court must perform the tedious task of reviewing the alimony 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 cases of a temporary alimony award was granted 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 the this period as they will be for the future, a trial court must award alimony retroactive to the date the divorce litigation commenced. A trial 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 ruling, 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 $3,000 and $5,000 depending on their level of complexity. For non-final orders they are between $2,000 and $4,000. See Family Lawyer Retainer Fees for more information.
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