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ALIMONY’S ‘STANDARD OF LIVING’ TEST: WHAT IF THE ‘STANDARD’ IS TOO HIGH?

Under Florida’s alimony statue (Chapter 61.08, Florida Statutes), one of the main criterion in determining the amount of alimony to be awarded to a requesting spouse is a determination by the court of the ‘standard of living maintained during the marriage.’ This is the first of ten statutory criteria to be applied once there is established a quantified ‘need’ for alimony by the requesting spouse and the financial resources (‘ability’) of the paying spouse to meet that need.

The setting of an alimony amount is typically the second financial step in a divorce case following the court’s equitable distribution between the parties of the marital assets and marital debts. Equitable distribution is a large topic which will be covered in the future. But for our purposes the court has to consider the amount of income any of the assets could produce for the recipient spouse following the divorce (such as income from rental property, stock portfolio returns, cash, etc.) in determining the ‘need’ of the alimony requesting spouse. ‘Need’ may be reduced by some or all of the income to be produced following the divorce.

As financial woes are a leading cause of marital discord and divorce, how can the court order the maintenance of a ‘standard of living’ if the standard is predicated on financing beyond the income of the couple? Specifically, what if the ‘standard’ was fueled by financially irresponsible credit card debt, unsustainable borrowing and the like? In considering an award of alimony, can the court reduce the ‘standard of living’ to one that would have been sustainable absent the couple’s profligate spending and the piling on of marital debt?

The answer was established in Florida case law handed down over the years by the appellate courts. A very recent 2020 appellate case which arose in Miami-Dade Family Court featured a divorcing couple that had accumulated credit card debt to sustain a lifestyle neither could afford. The appellate court cited to an earlier case in reiterating the rule our courts must follow:

“The parties have lived well beyond their means during their twelve years marriage. That, of course, clouds the financial picture and makes unreliable many of the usual benchmarks for resolution of the issues. For example, the parties standard of living as a factor determining ‘needs’ and ‘ability’ loses its punch when the standard was far too high for the circumstances of the parties.”

‘Loses its punch’, indeed. By using the services of a qualified divorce forensic accountant, an experienced family law attorney can give the court evidence creating a clear picture of what should have been the couple’s appropriate ‘standard of living’ by discounting the excessive spending and debt. This is most helpful to both a spouse facing an alimony demand and the court that must make that decision.

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