When a divorce is filed in Florida, one party usually moves away. One household becomes two households. But, there is usually only one or two incomes available to support those two households.
If one spouse was making the majority of the income, this means that the spouse may be expected to support their spouse on a temporary basis until the parties’ finances are sorted out. If not done, voluntarily, the party who needs the money will need to file a Motion For Temporary Alimony in order to survive until the court has determined the parties finances and long-term obligations to each other.
Luckily, the standing order that a Florida divorce court issues usually resolves this issue.
Standing Orders Usually Resolve Most Temporary Financial Issues In A Florida Divorce
Collier County’s Uniform Standing Temporary Domestic Relations Order reads as follows:
“The parties shall NOT cancel or cause to be canceled any utilities, including telephone, electric or water and sewer. The parties may spend their income in the ordinary course of their personal and family affairs. The parties shall NOT conceal, hoard, or waste jointly owned funds, whether in the form of cash, bank accounts or other highly liquid assets, except said funds can be spent for the necessities of life, but only if the parties’ regular incomes has been expended for such.”
The standing order requires that all the bills continue to be paid by the person that used to pay the bills. This keeps the rent paid, insurance current and the lights on. Available marital funds in joint accounts remain available for ongoing marital expenses.
The standing order goes on to explain that “[a]ny party who violates this Order will be required to render an accounting and may be later sanctioned for wasting a marital asset.”
This arrangement usually leaves the non-moneyed spouse in a comfortable position without filing a motion for temporary alimony until the divorce is finalized in a few months.
If the non-moneyed spouse has moved out of the marital home and/or there is no joint account flush with funds…then a motion for temporary alimony will be necessary.
Temporary Alimony In A Florida Divorce
Temporary alimony in Florida is referred to as “Alimony Pendente Lite”
Pendente Lite is Latin for “while the action is pending”
Temporary alimony is almost always requested in conjunction with temporary attorney’s fees. After all, if you cannot afford to live during your divorce…how are you going to afford your divorce attorney. So, the statute provides for both temporary alimony and temporary attorney’s fees.
“Alimony pendente lite; suit money. — In every proceeding for dissolution of the marriage, a party may claim alimony and suit money in the petition or by motion, and if the petition is well founded, the court shall allow a reasonable sum therefor. If a party in any proceeding for dissolution of marriage claims alimony or suit money in his or her answer or by motion, and the answer or motion is well founded, the court shall allow a reasonable sum therefor.” Fla. Stat. § 61.071
Temporary alimony in Florida is determined how the final alimony amount will be determined.
“The appropriate inquiry — need and ability to pay — is the same whether the fees requested are temporary or final” Pedraja v. Garcia, 667 So. 2d 461 – Fla: Dist. Court of Appeals, 4th Dist. 1996
“In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.” Fla. Stat. § 61.08(2)
“The criteria for an award of temporary alimony are the same as for permanent alimony, namely, the need of the spouse requesting the alimony and the ability of the other spouse to pay.” Stern v. Stern, 907 So.2d 701 (Fla. 4th DCA 2005)
“The criteria for temporary alimony are: (1) need of the requesting spouse and (2) the ability of the other spouse to pay.” Shaw v. Shaw, 337 So. 3d 61 – Fla: Dist. Court of Appeals, 4th Dist. 2022
It is that simple. Only two things need to be proven in order for a Florida divorce court to award temporary alimony: “What are the needs of the spouse requesting to alimony?” And “Can the other spouse pay that amount?”
The Needs Of The Party Requesting Temporary Alimony In A Florida Divorce
“Need” is the standard of living of the spouse requesting alimony.
“The correct standard by which temporary support and alimony are to be assessed balances needs, as fixed by the parties’ standard of living on the one hand, and ability to pay, on the other.” Fonderson v. Lairap, 98 So. 3d 715 – Fla: Dist. Court of Appeals, 2nd Dist. 2012
While in the process of divorce, a parties needs are in flux. A party will need to testify as to their current and anticipated needs with specificity.
An “award [of alimony can be] based, in significant part, on “anticipated” household expenses [a spouse] testifie[s they] would incur [in the future]” Ard v. Ard, 208 So. 3d 1288 – Fla: Dist. Court of Appeals, 1st Dist. 2017
A Florida divorce court will look at the standard of living of each party today, not the standard of living the parties enjoyed as a couple. After all, the divorcing parties are no longer a couple.
“[T]he previous course of conduct of the parties is not the correct standard for assessing a temporary …award.” Fields v. Fields, 533 So.2d 922, 924 (Fla. 2d DCA 1988)
The Ability To Pay Temporary Alimony In A Florida Divorce
The party requesting temporary alimony is usually more constrained by the other party’s ability to pay than proving their actual needs. After all, the parties used to live as one household and now they live as two (presumably more expensive) households.
A Florida court must determine what the net income is for each party in order to meet the needs of the party requesting temporary alimony.
“[T]he law requires the court to make a finding of net income when fashioning temporary relief.” Meldrum v. Bergamo-Meldrum, 281 So. 3d 504 – Fla: Dist. Court of Appeals, 4th Dist. 2019
If the money is not available to meet the needs of the party requesting temporary alimony…that alimony will not be awarded.
“If an award is in excess of a party’s ability to pay, then it is not supported by competent, substantial evidence, and a trial court abuses its discretion by ordering such an award.” Buchanan v. Buchanan, 225 So.3d 1002, 1003 (Fla. 1st DCA 2017)
“[A] trial court cannot enter a temporary [financial] award that exceeds or nearly exhausts a party’s income” Clore v. Clore, Fla: Dist. Court of Appeals, 5th Dist. 2013
Other reasonable obligations that must be paid first will reasonably considered as impacting a spouse’s ability to pay temporary alimony.
“The trial court must take alimony and child support payments into account when determining whether the party has the ability to pay.” De La Piedra v. De La Piedra, 243 So. 3d 1052 – Fla: Dist. Court of Appeals, 1st Dist. 2018
Of course, some people (especially in Florida) live off their assets and not their incomes. If parties are living beyond their means by spending assets NOT income, the rule that you cannot ask for support or fees beyond the other parties’ income can be broken.
“Where the parties’ standard of living required invading the principal of non-marital assets, the trial court must look to all the financial resources of the parties, including the invaded non-marital assets, when determining the amount of an alimony award.” Stacpoole v. Stacpoole, 856 So. 2d 1131 – Fla: Dist. Court of Appeals, 1st Dist. 2003
Funds from third-parties, such as parents and/or friends will not be considered when determining either party’s ability to support themselves or their soon-to-be-ex-spouse.
“[T]he general rule is that the trial court may only consider the financial resources of the parties and not the financial assistance of family or friends.'” Rogers v. Rogers, 824 So.2d 902, 903 (Fla. 3d DCA 2002) (citations and quotations omitted)
“The financial resources that should be considered in assessing the relative financial ability of the parties are the resources the parties have available without their having to look beyond the financial resources subject to their individual control.” Azzarelli v. Pupello, 555 So.2d 1276, 1277 (Fla. 2d DCA 1989)
The Requirements Of A Temporary Alimony Hearing In A Florida Divorce
The biggest difference between a hearing for temporary alimony and a final alimony hearing is the amount of information that is available to the court. After all, discovery probably has not even started yet.
“Given the urgency of some of these matters, the order is often entered based upon an abbreviated hearing and limited evidence. The court often has little more than the parties’ financial affidavits to guide it in calculating support. These forms can be complicated to fill out accurately, particularly for pro se parties or parties who are unable to review the affidavit with their counsel in detail prior to the temporary hearing. As the case progresses, the developing evidence or changes in the parties’ financial circumstances may reveal inequities or errors in the prior support awards that require adjustment in the final analysis.” Dent v. Dent, 851 So. 2d 819 – Fla: Dist. Court of Appeals, 2nd Dist. 2003
This urgency does not mean that the parties’ attorneys can just argue their points based on filed financial affidavits.
“[U]nsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation.” Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006)
Parties to a Florida divorce who are requesting alimony or denying alimony have to testify to their needs and incomes.
The need for “substantial competent evidence” is mandatory. A Florida court cannot “ball park” temporary alimony at a round number.
“Although awards of temporary alimony are within the trial court’s broad discretion, the record must contain competent, substantial evidence to support the trial court’s ruling.” de Gutierrez v. Gutierrez, 19 So.3d 1110 (Fla. 2d DCA 2009)
For example, “The evidence presented established that Former Husband has monthly expenses of $5,342 and an imputed monthly net income of $1,191. Thus, the evidence shows that Former Husband needs $4,151 per month in alimony, not the $7,500 per month awarded by the trial court.” Fortunoff v. Morris, 197 So. 3d 128 – Fla: Dist. Court of Appeals, 4th Dist. 2016
Furthermore, because temporary alimony awards are often made simultaneously with child support awards, Florida divorce courts must adequately distinguish between the two different support awards.
It is improper for a Florida divorce court to fail “to identify which share of the award [is] for child support and which [is] intended to be alimony.” Blum v. Blum, 769 So.2d 1142, 1143 (Fla. 4th DCA 2000
It is an “error for a trial court to award undifferentiated spousal and child support rather than calculating the amounts separately.” Shaw v. Shaw, 337 So. 3d 61 – Fla: Dist. Court of Appeals, 4th Dist. 2022
Likewise, retroactive awards of temporary maintenance (the time between filing the motion for the temporary maintenance and the receipt of the temporary maintenance) require sufficient proofs to establish the needs and ability to pay during that time frame.
Awarding “temporary alimony retroactive to the date of separation [if the court] failed to pen findings regarding the historical needs of the wife from said date until the date of the award…requires remand.” Cura v. Cura, 299 So. 3d 1127 – Fla: Dist. Court of Appeals, 3rd Dist. 2020
Changing A Temporary Alimony Award
Florida divorce courts can make temporary alimony awards as they see fit with little supervision by the appellate court.
“The trial court has broad discretion over temporary relief awards.” Shaw v. Shaw, 337 So. 3d 61 – Fla: Dist. Court of Appeals, 4th Dist. 2022
“[T]emporary relief awards are among the areas where trial judges have the very broadest discretion, which appellate courts are very reluctant to interfere with except under the most compelling of circumstances.'” Bengisu v. Bengisu, 12 So.3d 283, 286 (Fla. 4th DCA 2009)
Any error in temporary alimony will be corrected during the course of the divorce proceedings.
“The circuit court should thus be permitted to adjust temporary support orders in domestic relations cases when the circumstances merit it.” Dent v. Dent, 851 So. 2d 819 – Fla: Dist. Court of Appeals, 2nd Dist. 2003
If the temporary support amount is wrong, do not worry. The money owed (to either side) can be fixed at the final hearing (the trial). “If further discovery reveals that a temporary support order is inequitable or based upon improper calculations, any inequity can usually be resolved in the final judgment, after a full and fair opportunity to be heard.” Ghay v. Ghay, 954 So.2d 1186, 1190 (Fla. 2d DCA 2007)
Temporary alimony sets the tone for the remainder of the alimony issues in a Florida divorce case. A temporary alimony hearing will apprise the court of who has what needs and who was what capacity to pay for those needs. Beyond division of marital assets, that is the whole divorce. So, start your case with the best first impression possible. Be prepared for your temporary alimony hearing.
If you would like to speak with an experienced Florida divorce attorney, contact my Naples, Florida family law firm today to schedule a free consultation.
