March/April 2017
As seen in the St. Petersburg Bar Association Paraclete, March/April Issue, pg. 10-11
It is not unexpected that spouses dealing with the dissolution of their marriage have both significant emotional and financial stressors in their lives. With the large volume of dissolution of marriage cases in Florida, contested divorces can take years to get to trial, ending with the court’s entry of a final judgment of dissolution of marriage resolving issues such as alimony and equitable distribution of marital assets. What does a spouse do for support from the first day of a divorce petition being filed when he or she is in financial need and is unable to wait until the final judgment of dissolution of marriage is entered?
In Florida, under Chapter 61, a spouse in a marriage dissolution proceeding has the right to seek temporary support for alimony prior to the entry of a final judgment for dissolution of marriage.1 This article summarizes the evidentiary requirements to obtain a temporary alimony award and, if granted, the requirements for either spouse to obtain a modification of the temporary alimony award.
In determining whether to award temporary alimony, just as with a permanent award, the court must first make a specific, factual finding as to whether the support seeking spouse has an actual need for alimony and whether the other spouse has the ability to pay alimony.2 The court is required to balance these needs,3 as well as consider the parties’ standard of living.4
If the support-seeking spouse meets the threshold requirements of showing his or her need and the other spouse’s ability to pay, the statutory factors the court must consider in awarding temporary alimony include, but are not limited to, the same factors the court considers in awarding alimony in a final dissolution judgment. The factors for the court to consider are as follows:5
(a) The standard of living established during the marriage;
(b) The duration of the marriage;
(c) The age and the physical and emotional condition of each party;
(d) The financial resources of each party, including the nonmarital and marital assets and liabilities distributed to each;
(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment;
(f) The contribution of each party to the marriage, including, but not limited to services rendered in homemaking, child care, education, and career building of the other party;
(g) The responsibilities each party will have with regard to minor children they have in common;
(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment;
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party; and
(j) Any other factor necessary to do equity and justice between the parties.
By their very nature, temporary support orders are obviously temporary. Vested rights are not created and they can be modified or vacated at any time while the case proceeds.6 If further discovery reveals the temporary support order is inequitable or based on improper calculations, the inequity can be resolved either through a supplemental petition/motion to modify or at trial.7
Importantly, if a trial court enters an order awarding temporary alimony, the legal requirements for modification of the temporary alimony award by either spouse are different than for modification of any type of alimony awarded in a final judgment. Section 61.14(11)(a), Fla. Stat. (2016) provides that “[a] court may, upon good cause shown, and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary support order before or upon entering a final order in a proceeding.” The lack of a requirement of proof of a “substantial change of circumstances” is the opposite of what is required for the modification of alimony after entry of a final judgment.8 For those awards, there must be a substantial change in the financial circumstances of either party occurring after the entry of the alimony award in the final judgment to justify a modification.9
Section 61.14(11)(b) provides that “[t]he modification of the temporary support order may be retroactive to the date of the initial entry of the temporary support order” or “the date of filing … the supplemental petition for modification.” Temporary alimony awards are merged into the final judgment and do not continue after the final judgment.10
It is important to note that supplemental petitions/motions for temporary alimony often occur early in a case before the parties have had an opportunity to complete discovery. As a result, the parties are often faced with limited hearing time due to the financial urgency. Notwithstanding, practitioners must provide the court with competent substantial evidence in the record so that the court has a basis on which to make the necessary findings based on the statutory factors in order to either grant or deny temporary alimony.
1 §61.071, Fla. Stat. (2016)
2 §61.08(2), Fla. Stat. (2016)
3 Fonderson v. Lairap, 98 So. 3d 715, 717 (Fla. 2d DCA 2012)
4 de Gutierrez v. Gutierrez, 19 So. 3d 1110, 1113 (Fla. 2d DCA 2016)
5 §61.08(2)(a – j), Fla. Stat. (2016)
6 Ghay v. Ghay, 954 So. 2d 1186, 1190 (Fla. 2d DCA 2007)
7 Id.
8 §61.14, Fla. Stat. (2016)
9 Id.; See Cleary v. Cleary 743 So. 2d 1163 (Fla. 5th DCA 1999)
10 Dunkel v. Dunkel, 196 So. 3d 480 (Fla. 2d DCA 2016)
