Alimony Not Proper If Spouse Lacks the Ability to Pay

Alimony Not Proper If Spouse Lacks the Ability to Pay

Sometimes, courts decide to award alimony to one spouse in a divorce based on that spouse having a much smaller income than the other spouse. The 2d District Court of Appeal received a case like this and reversed the trial court’s ruling requiring the husband to pay alimony. That’s because evidence of income disparity alone is not enough to justify an alimony award. The law requires proof of the recipient spouse’s need and the payor spouse’s ability to pay. The evidence in the case showed the husband did not have the ability to pay, so awarding alimony was erroneous.

Matthew Mills’ family law case was one similar to many people’s situations. While married, Mills and his now-former wife, Tracey, had a child. They also racked up a considerable amount of debt, including credit card balances exceeding $10,000. Eventually, the couple decided to dissolve their marriage. By the time they split up, each spouse was in a very problematic financial state, since each had debt obligations exceeding their incomes.

The trial court in the couple’s case established a timesharing schedule for the couple’s child. The court also awarded alimony to the wife. The court based this ruling on a magistrate’s report that stated, without any factual findings to back up the conclusion, that the husband had the ability to pay alimony to the wife.

The husband appealed and was successful. In order to award alimony, the trial court must go through several required steps. The court must make specific findings of fact about the alimony recipient’s need and also make specific findings about the payor spouse’s ability to pay alimony. The court in the Mills case did none of these. It merely adopted the magistrate’s report that made a general conclusion that the wife needed the alimony and the husband could pay.

Even if the wife had presented plenty of evidence of her need, and the court had made specific findings about that need, awarding alimony in this case would have been improper. The evidence in the case plainly showed that the husband had more obligations than he had income, before factoring in child support or alimony. The trial court had no evidence before it from which it could decide that the husband had the ability to pay alimony, so that award was improper in this case.

The trial court had apparently decided that the husband had the ability to pay because he had a substantially larger income than the wife. That alone, though, is not a justification for awarding alimony. As several Florida courts have stated, the “trial court in a divorce proceeding is not required to equalize the financial position of the parties.” Both spouses had significant financial troubles. Placing the husband in an even deeper hole would not fix either spouse’s financial troubles, the court stated.

The appeals court also sent the timesharing plan back. The plan made no provisions for holiday timesharing. Including a holiday schedule in a timesharing plan has become routine in child custody cases, and it is especially necessary in situations when the spouses have a “contentious parenting relationship,” as the couple in this case had. Failing to include such a holiday plan was a clear error and required sending the timesharing issue back to the trial court for inclusion of a holiday schedule.

How We Can Help
If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed family law attorney who has been practicing law since 1987. He is available whenever you need him to pursue your rights. Please learn about our firm at