Husband and wife being distant in same room

Appellate court: Alimony too low, try again

Heart with money in itYou may have read stories recently about the divorce battle taking place between hedge fund billionaire Kenneth Griffin and his estranged wife Anne Dias Griffin. She has claimed expenses of nearly $1 million per month, which she says is needed to support herself, her three children and their four nannies.

While not everyone lives that lavishly, it is the standard of living to which Dias Griffin says she became accustomed during their 12-year marriage. Generally speaking, the purpose of alimony is more than just meeting the financial needs of an ex-spouse; rather it is to maintain the standard of living that the couple established when they were married.

A recent ruling by the Second District Court of Appeal drives home that fact. In this case, the appellate court tossed out a lower court’s alimony award for being too low and not “commensurate with the standard of living established by the parties during the marriage or with the Husband’s ability to pay.”

The case involved a couple that had been married 28 years before they filed for dissolution of marriage in 2011. While both had been employed during most of their marriage and the wife provided the primary source of income, in 2008 she lost her job and her salary was substantially reduced.

At the time of the final divorce hearing, the wife was earning $29,000 a year, while her ex-husband had an annual income of $280,000. She said that to continue to live a lifestyle similar to that during her marriage, she needed between $9,000 and $10,000 a month. The husband argued her expenses were between $4,700 and $5,800 a month.

The trial court found the wife’s current reasonable monthly expenses to be $4,800, but after adjusting various components of her financial affidavit awarded her permanent periodic alimony of $1,571 per month, plus a rental property which generated $1,082 a month.

The appellate court noted that the trial court rejected a majority of expenses claimed by the wife without specifying which ones and why.

“It appears from the record on appeal that the trial court determined the Wife’s need based on her post-separation lifestyle rather than the standard of living enjoyed during the marriage. This was error,” the appellate court wrote.

The appellate court determined that the trial court abused its discretion and in doing so allowed the husband to enjoy a level of affluence, which far exceeds that enjoyed by his ex-wife. It sent the case back to the trial court for proceedings consistent with its ruling.

It’s very difficult for divorcing couples to maintain the marital standard of living when one household becomes two.

In recent years courts have stated that the marital standard of living should not be a “super factor” (i.e. trumping all other factors the court takes into consideration) when awarding alimony. However, both the trial and appellate courts in this case appear to give it a great deal of weight.

In 2011, Florida’s alimony statute changed to provide that permanent alimony should only be awarded when no other form of alimony is appropriate. Other forms of alimony include rehabilitative or durational alimony, which would allow the spouse receiving alimony to either get back on their feet, or receive alimony for a fixed period of time, but not for a lifetime.

Unfortunately, not all courts appear to be following the changes in the law. In this case, the ex-wife who was the family breadwinner during most of the marriage now makes just $29,000 per year. The court does not appear to consider whether any other form of alimony, other than permanent alimony, is appropriate.

The ruling provides additional ammunition for those seeking alimony reform. Awards of permanent alimony could become a thing of the past if a bill making its way through the Florida Legislature passes. HB 943 and SB 1248 are designed to change the state’s alimony laws while at the same time appeasing those who have been against reform by being more fair and balanced.

We will continue to monitor their progress and provide updates.

Lori Barkus is a Florida Supreme Court Certified Circuit Civil and Family Law mediator and guardian ad litem. She handles matters relating to divorce, custody, child support, paternity, collaborative divorce, adoption, parental rights, and family law and civil mediation.

Ms. Barkus is a cum laude graduate of the University of Miami School of Law. She is admitted to practice in Florida, Georgia and the District of Columbia, as well as in the Southern and Middle Districts of Florida and the Eleventh Judicial Circuit Court of Appeals. She is also a member of Leading Women for Shared Parenting.

I may need a divorce.
Hi, I’m Lori Barkus, a family law attorney. My Colorado and Florida-based law firm helps women have a successful divorce by achieving the fairest resolution in the most efficient manner possible. And today, I’d like to talk to you about the what-ifs of divorce. Let’s say you’re thinking about divorce, or maybe your spouse has shared some shocking and devastating news about a betrayal or told you that they’re thinking about divorce, and you’re completely caught off guard by this. You’re still determining what you want at this point. You might still be thinking, maybe I can still save my marriage, or it might be unavoidable and the process is moving forward. Your friends and family are telling you that you should go forward. They’re telling you, you should talk to an attorney. You have so much going on. You know you need help but you’re trying to figure out where to go.

We can help with this situation, because it’s something that my firm and I have faced many times over the years. In fact, we’ve seen cases like this so often that we’ve created an offering specifically for you. We do what’s called a strategy session, and the purpose of this session is to answer all of those what-ifs? We’re here to help you, not just tell you that you should go forward with divorce. We want you to understand what would happen if this goes forward. We want you to know what the process looks like. We want to answer your question about mediation. What is it? Is it right for you? What can you expect in terms of custody of your kids? Would you get alimony? Would you pay alimony? How does child support work? What if you want to keep your house? Maybe you’re concerned that your partner is hiding money.

We can answer all of these questions and more. We can also provide resources to help you understand your financial picture and help support you in making the decision. That’s what we’re here to do. We want you to determine if the marriage can be saved and if divorce is the right step for you, and if it is, we want to make your divorce a successful one. If you have any questions, please get in touch.
Divorce FAQs

A divorce mediator is a neutral party who does not represent either person in a divorce. They can help you and your spouse reach an agreement on all divorce-related issues such as child support, parenting plans, dividing property and spousal support. Divorce mediation usually works best when both parties generally agree on how they want to resolve the various issues and are on amicable terms. At Barkus law, we provide a service that includes both mediation time to discuss and work out the details of your divorce as well as the preparation of all divorce-related documents you will need to file with the court. Although she is a family law attorney, in her role as a mediator, Lori Barkus cannot file paperwork on your behalf, nor can she provide you with legal advice. However, she can prepare all of the documents for you and give you detailed step-by-step instructions about how to file your paperwork. Should you have legal questions or require that paperwork filed on your behalf, you should speak with a qualified attorney about your rights and obligations before and even during the mediation process. Mediation is a low-cost and less stressful way to “untie the knot.” Sustainable Family Solutions offers a flat fee for the mediation process and an additional fee for preparing the documents you need to file with the court. Please call us for details.

In a collaborative divorce, both parties are represented by separate attorneys. The parties and their lawyers sign an agreement not to go to court and instead work together to create an agreement that is best for the parties and their children. The parties can end the process if it does not work, but, if they go to court to have a judge decide, they will each need to hire another lawyer. This keeps the lawyers and parties invested in reaching an agreement. Collaborative divorce can cost far less than a traditional or litigated divorce and can help preserve the family and keep children out of the process. If you are interested in a consultation or have questions, do not hesitate to contact Sustainable Family Solutions. Simply click here and send us a message and we’ll get right back to you.

In order to obtain a divorce, one party needs to state that he or she has lived in Florida for six months and that the marriage is irretrievably broken.
A divorce can be granted over one party’s objection. As long as one party meets residency requirements and states that the marriage is irretrievably broken, there is no way to object to or to stop the divorce process from moving forward.

While you are not required to have a lawyer represent you, not having a lawyer can put you at a disadvantage. It is very important that you understand your rights and obligations before you reach any settlement or go to court. You may decide to seek legal advice or representation if you have questions about your rights in the divorce process.

While alimony can be modified, requesting a modification doesn’t mean you’ll get one. It’s not a matter of simply going before a judge and telling them that you no longer can pay what you have been paying your ex-spouse. These cases must be prepared carefully and those seeking a modification must be able to state a legal basis for the change. Under Florida statute 61.13, the trial court judge has the discretion as to whether alimony will be modified. It provides that when “the circumstances or the financial ability of either party changes” either party may apply for an order decreasing or increasing the amount of alimony and the court has jurisdiction to make orders as equity requires, with “due regard to the changed circumstances of the financial ability of the parties.” The party seeking the modification carries the burden to justify the reduction by having to prove a substantial change in circumstances since the original alimony order and that the change in circumstances was not contemplated at the time of the final order of dissolution. The change also has to be “sufficient, material, involuntary and permanent in nature.” In other words, the party seeking a reduction can’t quit a job that paid them $100,000 a year and accept a job that pays significantly less. When it comes to being permanent in nature, this depends on the facts and circumstances of a particular case. Should the spouse paying alimony choose to retire, the court can take that into consideration. However, that doesn’t mean there will be an automatic reduction or termination of alimony. The court has to consider the age of the payor, his or her health, and the reason for their decision to retire as well as the financial circumstances of the recipient. There are many scenarios that can be contemplated when seeking modification of alimony. Modifications require the consultation and assistance of an attorney who understands the process, the risks and the likelihood of success. If you are interested in a consultation or have questions do not hesitate to contact Sustainable Family Solutions. Simply click here and send us a message and we will get right back to you.

The goal of shared parenting is for parents to collaborate and to remain actively involved in their child’s life, not just on weekends or holidays. In most cases, parents share parental responsibility and make decisions together regarding education, health, and other important matters. Timesharing refers to the time each parent is allowed to spend with the child or children. In more and more cases, parents have equal or nearly equal timesharing with the children. Historically, most children whose parents divorce have spent a majority of their time living with one parent — usually the mother — with the other parent getting visitation rights. However, there has been a big push in recent years to balance the amount of time children spend with both parents, giving parents the opportunity to be actively involved in the raising of their children. In most states, including Florida, judges make custody decisions based on a”best interest of the child” standard. However, judges need not explain the reason(s) for their decisions. Several states have gone so far as to pass shared parenting legislation. In 2013, Florida lawmakers approved an alimony reform law that included a provision for shared parenting. However, Gov. Rick Scott vetoed the bill. Equal timesharing isn’t for everyone and works best for those who are ready, willing and able to take on responsibilities for their child. If you are interested in a consultation or have questions do not hesitate to contact Sustainable Family Solutions. Simply click here and send us a message and we will get right back to you.

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