Sneaking in just before the new year, a Florida court issued two surprise decisions which are basically . . . alimony reform. Apparently, some judges have been questioning the constitutionality of awarding retroactive alimony to a spouse. This month, the First District Court of Appeal squarely addressed the issue.

Retroactive Alimony

Merry Christmas!

In the first of the two cases, a Former Husband founded a successful company. During their marriage, the parties’ lifestyle was lavish. When they separated, Former Wife was forced out of the business. Both parties have significant resources. However, Former Husband now earns several times more than Former Wife.

Before the final hearing, the parties settled all their claims against each other except for the Former Wife’s interest in the business, attorneys’ fees, and importantly, her demand for retroactive and prospective alimony.

A year after the conclusion of the trial, the trial court entered a final judgment. It adopted much of the Former Wife’s proposed order verbatim. The trial court awarded Former Wife durational and retroactive alimony.

The amount in durational alimony was set at $4,983 a month for six years. Former Husband was also ordered to pay a lump sum of retroactive alimony for a period spanning the date of the petition, April 13, 2018, to the date of judgment on January 15, 2021. The Former Husband appealed.

Florida Alimony

I’ve written about alimony in Florida. In every Florida divorce case, the court can grant alimony to either party. Not many people realize there are several types of alimony in Florida: bridge-the-gap, rehabilitative, durational, or for the moment, permanent alimony.

Florida courts can award a combination of alimony types in a divorce. Alimony awards are normally paid in periodic payments, but sometimes the payments can be in a lump sum or both lump sum and periodic payments. Typically, courts consider any type of earned income or compensation along with recurring passive income, such as dividends on your investments, in establishing the amount of support you will be responsible to pay.

In Florida, once a court determines there is a need and the income available to pay alimony, it has to decide the proper type and amount of alimony. The court considers several factors, some of which can include things like: the standard of living established during the marriage; the duration of the marriage, and the financial resources of each party.

Florida courts can also award, as the First District Court of Appeal itself has long held, retroactive alimony when appropriate. In fact, retroactivity has been the rule in Florida rather than the exception.

Retroactive Alimony

Happy New Year!

Former Husband raised several issues on appeal, most relevant, he argued the trial court erred in awarding both retroactive and durational alimony because, among other arguments, the trial court failed to impute investment income.

The appellate court reversed the award of durational and retroactive alimony based on the argument about imputation. However, the panel agreed with the concurring opinion, in which Judge Robert E. Long commented:

“retroactive alimony is a fiction of the courts and is not supported by any provision of Florida law.”

The concurrence also noted that retroactive alimony was started in Florida in a 1982 case which found that while there is no authority in Florida to award retroactive alimony, there is no law against it.

The rationale for retroactivity was that other states approved awards of alimony retroactive to the date suit is filed. Additionally, it was inappropriate to look to other state’s decisions discussing retroactive alimony. Florida alimony is a unique creature of Florida state law. If the legislature finds another state’s alimony law compelling, it can adopt it. Judges cannot.

For decades, many judges were silently fuming about the rationale for awarding retroactive alimony. Since then, no Florida court has analyzed the issue. Instead, courts have just routinely affirmed retroactive alimony awards – but not based on their legality.

Two months later, the First District Court of Appeal reversed another retroactive alimony award. This time the majority opinion held:

Retroactive alimony is a creation of the courts” prohibited by the separation of powers set forth in article II, section 3 of the Florida Constitution.

Florida alimony modifications expressly provide trial courts the discretion to retroactively modify alimony awards “as equity requires.” But Florida Statutes do not expressly allow a trial court to award retroactive alimony in the first instance.

The most recent opinion is here.

Congratulations to Shannon Novey who represented the appellant.

Comity Hour

Carmen filed her divorce in Nebraska, claiming she and her husband Arlin were married in Omaha, had no children, that her husband was a Nebraska resident and that she is “not now a party to any other pending action for divorce, separation or dissolution of marriage.” Carmen wanted a divorce to divide their property and debts.

Carmen’s husband tried to dismiss the divorce for lack of jurisdiction. While he admitted they got married in Nebraska on March 8, 2003, he said they were also married in Venezuela on March 11, 2003.

The punchline: they were already legally divorced in Venezuela.

Since they were no longer legally married, the husband asked the court to dismiss the divorce for lack of subject matter jurisdiction and other grounds.

Florida Divorce and Comity

I have written about international divorce issues before. In Florida, a person must have resided in Florida for 6 months before the filing of the petition for the court to have jurisdiction over your divorce. The term “reside” generally means a legal residence in Florida with an intention to stay there, as opposed to a temporary residence.

However, when children are involved, or you are seeking financial assistance, such as alimony, child support, or a division of property, the court needs to have jurisdiction over your spouse too.

There are even more complex, multi-state laws which impact if a court can hear a divorce, the children’s issues, or the family support issues.

Recognizing a foreign divorce is different. In general, where courts in one country have concurrent jurisdiction over substantially similar parties and claims, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that divorce. This is known as the principle of priority.

While the principle of priority is not a duty, as a matter of comity, courts may stay a pending divorce on the grounds that a case involving the same subject matter and parties is pending in the court of another U.S. state. But the principle of comity applies – not only to proceedings pending in two different U.S. state courts – but to divorce cases pending in foreign courts too.

Comity Isn’t Pretty

Back in Nebraska, the parties focused their arguments exclusively on whether the Venezuelan divorce decree should be recognized as valid in Nebraska under principles of comity.

The family court dismissed Carmen’s complaint with prejudice, stating: The question before the Court is whether the Venezuelan Decree is valid. On that issue, Carmen argued the Venezuelan decree was invalid and she was therefore entitled to seek a decree of dissolution in Nebraska.

Arlin, on the other hand, argued the Venezuelan decree was valid in Nebraska and the parties were already legally divorced, so the Nebraska dissolution action should be dismissed. The family court agreed with the husband and found the Venezuelan decree was valid in Nebraska. The Wife appealed.

The Supreme Court of Nebraska reversed. The court reasoned that the husband’s evidence did not show the trial court lacked subject matter jurisdiction over the divorce. As long as the trial court had met the basic requirements, it had jurisdiction.

The family court confused the doctrine of comity with subject matter jurisdiction. The doctrine of priority is not the same thing as subject matter jurisdiction. A subsequent court does not lack the judicial power over a divorce. The issue of whether a foreign divorce decree should be recognized, the principle of comity, is not a matter of subject matter jurisdiction – or grounds for dismissal.

Whether the Venezuelan divorce decree is entitled to recognition under principles of comity was still a contested issue in the divorce, and that issue did not impact the family court’s subject matter jurisdiction.

The Supreme Court of Nebraska opinion is here.

Month: December 2022

Surprise! Florida Alimony Reform Just Passed