In Smith v Smith, 38 Fla. L. Weekly D637, The District Court of Appeal denied a former husband’s
Petition to terminate his alimony obligation on the grounds that the former wife was residing
with another in a supportive relationship where the parties had entered into a marital settlement
agreement that provided that alimony obligation would be nonmodifiable regardless of any change in
circumstances of either party.
Court in Florida have recognized that the statutory right to petition for modification of an alimony award
may be intentionally or impliedly waived and that the waiver may be stated in express terms, or through
interpretation of the agreement as a whole.
If the language of the agreement indicates a clear intention by the parties that the agreed-upon
provisions for alimony would be controlling, and that its terms would be modifiable only as authorized
therein, then the language is sufficient to operate as an implied waiver of any other ground for
In a case regarding the dissolution of marriage, a former wife was going to be awarded permanent alimony. The court found that the wife had exhausted a large sum of the parties’ savings account, while the husband did not act in this manner. The trial court failed to impute the wife’s ability to earn around $80.00 an hour in the photography business when computing the monthly alimony. The wife testified to the court and said that her job search was unsuccessful, but she admitted that she did not want to work for $10.00 an hour. In the court’s eyes, the wife’s unemployment was self-imposed. The trial court also failed to consider the husband’s credit card debt amounting to about $30,000 when the alimony was being calculated. The court had to modify and recalculate the permanent alimony so that it included the husband’s debt and the wife’s imputed income and potential earning.
February 13, 2013
In McClain v McClain 38 Fla. L WeeklyD167. The husband appealed a portion of the final judgment of dissolution of marriage that granted permanent periodic alimony to his wife. Because his wife never asked for alimony in her pleadings, the District Court vacated the final judgment of dissolution which awarded alimony. The District Court held that a court is not at liberty to award alimony where the benefiting spouse has failed to seek such relief in the pleadings. Unless and until a motion to amend the pleadings is granted there is not an actual amendment to the pleadings. The portion of the final judgment awarding alimony was vacated.
In Margaretten v Margaretten District Court of Appeal found that the trial court erred in awarding permanent alimony to the wife without addressing whether other forms of alimony would be fair and reasonable under the circumstances. In determining whether to award alimony Florida statutes state the trial court must first consider whether the requesting party has a need for alimony and whether the other party has the ability to pay. Then in determining the type and amount of alimony, the court must consider all relevant factors including those set forth in Florida statutes. In the case of permanent alimony the court must also find that no other form of alimony is fair and reasonable under the circumstances of the parties. The court found that there is no dispute that the former wife has a need for alimony and the former husband had the ability to pay. However the former husband contends that the trial court erred in awarding permanent alimony without expressing findings that no other form of alimony would be appropriate under the circumstances. The purpose of permanent alimony is to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks a financial ability to meet his or her needs and necessities of life following the dissolution of marriage. The parties disparate earning capacity is a significant factor in determining whether permanent alimony is appropriate. However this factor is not sufficient by itself to justify a award of permanent alimony or to rule out other forms of alimony. The court must consider all relevant factors in determining what type of alimony is appropriate. The District Court of Appeal found that the trial court was required to determine whether permanent alimony was the most fair and reasonable type of alimony under the circumstances and the court was obligated to include sufficient findings in its order to explain its decision.