Appellate court: Alimony too low, try again

You 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.