By Allison M. Perry
In 2011, the Florida Legislature added Subsection 9 of § 61.08, which states: “The award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.” § 61.08(9), Fla. Stat. (2011). “The amendments to s. 61.08, Florida Statutes, made by this act are applicable to all cases pending on ... July 1, 2011.” See Ch. 2011-92, Sections 79-80, at 1704, Laws of Fla. Importantly, since there are no restrictions contained in § 61.08(9), it is applicable to all forms and all combinations of alimony awards.
There is only one district court opinion addressing the application of § 61.08(9), and it comes from the Fourth District Court of Appeals. In Koski v. Koski, 98 So. 3d 93 (Fla. 4th DCA 2012), the former husband sought a modification of his $400-per-month permanent alimony obligation to the former wife, based on a substantial increase in her income ($1,710 to $4,867 per month), while the former husband’s income remained relatively unchanged ($3,180 to $3,418 per month). Id at 95. The result of the existing alimony award left Ms. Koski with income of $5,267 per month and Mr. Koski with income of $3,018 per month. The trial court denied Mr. Koski’s petition for modification, finding that the former wife had experienced a substantial increase in her earnings, but there was “insufficient evidence that her needs are met or have decreased.” Id. The appellate court reversed, finding the trial court failed to consider all the relevant factors of § 61.08(2) in denying the petition, and that on remand if the court determines Mr. Koski still has to pay more than a nominal amount of alimony to Ms. Koski, it must make written findings of exceptional circumstances to justify the award of alimony because it leaves the former husband with significantly less income than the former wife. Id.
If your client is facing a request for any type of alimony award, it would be wise to advise the court that pursuant to § 61.08(9), any alimony award must not leave your client with “significantly less net income than the net income” of the opposing party. If your client is requesting an alimony award that may result in a significantly higher income to your client than the opposing party, you should establish “exceptional circumstances” that would permit and support the alimony award.
If the trial court issues an alimony award that results in the payor spouse’s net income being significantly less than the receiving spouse, and the order does not make the requisite finding that exceptional circumstances exist to support the award, the filing of a motion for rehearing asserting the lack of requisite factual finding to support the award is highly recommended. See Esaw v. Esaw, 965 So. 2d 126, 1263 (Fla. 2d DCA 2008); Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001).
