November 02, 2016

Florida Appellate Court Orders Award of Permanent Alimony in Divorce Proceeding

hand with moneyIn Berger v. Berger, a wife in a divorce proceeding filed an appeal after a lower court amended a final judgment in the couple's marriage dissolution. The husband initiated the divorce proceeding after the couple had been married for 18 years. When the trial began, the husband was a full-time doctor earning over $200,000 per year. The wife was a stay-at-home mom who had not been employed in a job outside the home for more than two decades. Evidence at trial indicated that at the time the husband filed the divorce proceeding, the wife started seeking employment in various capacities earning $10 to $12 per hour.

During trial, a vocational expert testifying on behalf of the husband stated that the wife held a college degree in social work but that she was no longer professionally qualified to find work in that field. Although the wife testified that she was interested in finding employment, she stated that the job schedule would need to be flexible because she provided care for the couple's minor children. The expert testified that his research concluded that the wife could earn between $18 and $20 working at retail or clerical positions. He also offered evidence about other positions for which the wife might be qualified and the amount of compensation that each provided.

In its final judgment, the lower court held that the wife could earn a starting salary as a teacher of $39,000 with benefits after two years of education and substitute teaching. It also listed the wife's reasonable monthly income needs as totaling $6,000 per month. Ultimately, it awarded the wife $4,500 in alimony per month for 10 years.

The wife appealed, contending that the alimony award was insufficient because the court failed to base its final judgment on an award of permanent alimony, pursuant to Florida Statutes section 61.08. In reviewing the statute and the factors required for the court to employ a rebuttable presumption in favor of permanent alimony, the court failed to take into account that the marriage qualified as a long-term marriage under the statute, meaning that the wife could assert a rebuttable presumption in favor of permanent alimony.

Next, the court concluded that the lower court's findings against an award of permanent alimony were insufficient. When considering whether an award of alimony is appropriate, Florida courts must consider the requesting spouse's need and the ability of the other spouse to pay the amount requested. When assessing these factors, the lower court impermissibly relied on speculative testimony from the husband's experts regarding the amount of yearly salary that the wife could earn as a teacher.

The appellate court reversed the lower court's final judgment and remanded the case with an order to the trial court to award the wife permanent alimony in an amount to be determined based on the appellate court's instructions.

If you are going through a difficult and contested divorce, the family law attorneys at Lusk, Drasites & Tolisano are prepared to help you assert your rights and protect your assets. Having counseled families throughout Southwest Florida, including in Naples, Fort Myers, and Cape Coral, we understand how stressful and emotionally draining this ordeal can be. We can guide you through every step of the process and provide you with the knowledgeable and proactive counsel that you deserve. Call us now at 1-800-283-7442 or contact us online to schedule your free consultation.

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Posted in: Family Law

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