March 18, 2025
by SmartSites
In Florida, alimony is based on net income, not gross income. In Kingsbury v. Kingsbury the Florida Court of Appeal stated that in a divorce proceeding: “The ability to pay alimony should be based on the party’s net income. See Vanzant v. Vanzant, 82 So. 3d 991,993 (Fla. 1st DCA 2011) (holding that trial court erred by using figures that represented gross income rather than net income); Vega v. Vega, 877 So. 2d 882, 883 (Fla. 3d DCA 2004) (noting that former spouse’s argument that the award should be based on gross income rather than net income was incorrect because “[i]n reality, the case law states that net income is the relevant benchmark”) (citing Canakaris v. Canakaris, 382 So.2d 1197,1202 (Fla. 1980);
Lambertini v. Lambertini, 817 So. 2d 942,943 (Fla. 3d DCA 2002); Gandul v. Gandul, 696 So. 2d 466, 468 (Fla. 3d DCA 1997); de Armasv. de Armas, 471 So.2d 185,185 (Fla. 3d DCA 1985); Parhamv. Parham, 385 So. 2d 107,108 (Fla. 3d DCA 1980); Blum v. Blum, 382 So. 2d 52, 54 (Fla. 3d DCA 1980)).”
Here, the only mention in the final judgment of Mr. Kingsbury’ s income, and thus his ability to pay alimony, was his gross income. This is error. In Vanzant, this court recently reversed and remanded an award of alimony, explaining that the figures used “reflect[ed] the gross income shown on the former husband’s amended financial affidavit, not his net income.” 82 So. 3d at 993 (emphasis in original). Although it appears that Mr. Kingsbury may have had the ability to pay $4,000 per month in alimony, it is impossible to know for certain without some indication of his net income. See McCants v. McCants, 984 So. 2d 678, 682 (Fla. 2d DCA 2008) (“The trial court did not explain how it arrived at a net income amount of $4500 per month, and based on the record before us, we are compelled to reverse and remand for the trial court to reconsider this issue.”).”
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March 18, 2025
by SmartSites
In awarding alimony, income from property being distributed should be used in determining need and ability to pay. In Hodge v. Hodge, the Florida Court of Appeal recently stated: “The Amended Final Judgment does not indicate that the trial court’s calculation of the Appellee’s income included any investment income attributable to the assets divided in the equitable distribution scheme….
Failing to attribute the income from property being distributed to that party when determining need and ability to pay is reversible error. See Acker v. Acker, 904 So. 2d 384, 386-87 (Fla. 2005). The supreme court held that section 61.08(2), Florida Statutes, requires a trial court to consider all sources of income-including equitably-distributed assets-when determining alimony awards. Id. at 388-89 (citing Lauro v. Lauro, 757 So. 2d 523, 524-25 (Fla. 4th DCA2000)). In the present case, the trial court failed to consider how the equitable distribution scheme disposed of income-earning assets. Appellant argued below that the parties’ incomes after equitable distribution were significantly different than the estimates employed by the lower court’s award…In the Amended Final Judgment…The lower court also failed to include equitably-distributed property in its estimate of Appellee’s income. After reviewing the Amended Final Judgment, we conclude that the lower court’s conclusions are not based on competent, substantial evidence…In light of Acker, both parties’ income estimates must be revised to reflect the equitable distribution of income-earning assets. We reverse the lower court’s findings with regard to the calculation of both parties’ income and remand for a determination of an appropriate alimony award.”
To speak with a North Palm Beach Beach, Florida, divorce attorney about alimony, contact Matthew Lane & Associates, P.A. at (561) 651-7273.
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March 17, 2025
by SmartSites
In a recently decided alimony case captioned Hua v. Tsung, the husband filed an action for divorce. The parties were married for 17½ years. The Husband and wife were in their early forties. The Husband was the primary breadwinner and wife was a homemaker and stay-at-home mother. The Husband owned several businesses during the marriage. The Husband owned part of a restaurant. The Husband also allegedly owned shares in a company named DSC Holdings Limited. At the time of the divorce, the husband lived with a new girlfriend and their two minor children in Brazil. The Wife lived in Broward County, Florida, and took care of the parties’ minor children. During the marriage, the wife and the husband received generous gifts from the husband’s parents. The husband’s father bought them a home in California. When the parties moved to Florida, the Husband’s parents bought them a home in Broward County. The Broward County home was valued between $650,000 to $700,000. The parties also bought a rental property. The parties’ comfortable lifestyle was due in large part to the Husband’s father. The wife earned no income.
The Court of Appeal stated that in awarding alimony, the trial court must first make a specific factual determination concerning whether one party has an actual need for alimony and whether the other party has the ability to pay alimony. After making these two factual determinations, the trial court must then determine what type of alimony to award. The alimony statute sets forth several factors for the trial court to consider in choosing the type of alimony to award, including, but not limited to, the age of the parties, the duration of the marriage, the earning capacities of the parties, the financial resources of the parties, the employability of the parties, and the contribution of the parties to the marriage. A rebuttable presumption exists in the alimony statutes that a marriage lasting more than 17 years is a long-term marriage. An award of permanent alimony is appropriate after the dissolution of a long-term marriage.
To speak with an alimony attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.
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March 17, 2025
by SmartSites
In awarding alimony, income will not be imputed to a spouse who decides to defer taking Social Security benefits when that party would receive larger benefits by deferring the benefits.
In a case captioned Huertas Del Pino v. Huertas Del Pino the trial court imputed income to the Wife based on the Wife’s failure to apply for Social Security benefits. A court may impute income to an unemployed or underemployed party in determining that party’s need or ability to pay alimony. The party seeking to impute income has the burden of proof. In this case, the Wife was a stay at home mother with little employment experience. After the divorce was filed, the Wife unsuccessfully attempted to find employment. The trial court held that the Wife could find forty hours per week of employment and that she was capable of earning ten dollars per hour. Additionally, at the time of the final hearing, the Wife was eligible to immediately receive $640 per month in Social Security benefits. However, if the Wife elected to defer receipt of these Social Security benefits until after her sixty-fifth birthday, she would receive $900 per month in Social Security benefits. The lower court ruled that the Wife had an obligation to immediately apply for her Social Security benefits and imputed $640 per month to the Wife in reaching its alimony determination.
The Florida Court of Appeal reversed the trial court and held that the trial court improperly utilized the Wife’s current monthly Social Security payments in reaching its alimony computation. The Court of Appeal held that a party may properly choose to defer taking his or her Social Security benefits when the economic value of receiving the benefits early is outweighed by the benefit of receiving them later. A trial court should impute Social Security benefits and pension benefits to a party when that party can elect to draw benefits without receiving any reduction in these benefits. However, if by immediately taking pension or Social Security benefits a party will receive a reduced amount, it is improper to impute these benefits to that party as income. Deferring receipt of these benefits is not considered to be an intentional reduction in income; it is considered to be a wise investment strategy.
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