The Fifth District Court of Appeal recently addressed this issue and held that, when evaluating attorney’s fees, the determination of financial need must be made after considering the effects of equitable distribution and any alimony awards. In Ramakrishnan (April 25, 2025), the appellate court reversed a trial court order requiring the husband to pay $20,000 toward the wife’s attorney’s fees. Under Florida law, fee awards depend on one spouse’s need and the other’s ability to pay. However, the trial court’s own findings showed that the parties received an equal distribution of marital assets and had comparable incomes once the awarded alimony was factored into their net income. Because both parties ultimately had nearly equal financial resources, the appellate court determined that the attorney’s fee award was not justified.

If you have questions about how courts evaluate financial need in divorce cases, an experienced alimony attorney in Orlando can help you understand how issues such as spousal support, equitable distribution, and attorney’s fees may affect your case. For guidance with alimony, divorce, child support, and other family law matters, contact DeVoe Law Firm today.

In Shouman, the former wife appealed the trial court’s final judgment that denied her request for alimony. The Sixth DCA found that F.S. 61.08(2) requires a two-step process to determine whether alimony should be awarded.

First, the court must determine if there is an actual need for alimony on one hand and the ability to pay it on the other, basing this determination strictly on the parties’ net incomes after deducting reasonable expenses.

If both need and ability to pay are established, the second step involves deciding the type, amount, and duration of alimony, taking into account various statutory factors specified in F.S. 61.08(2), such as age, health, financial resources, earning capacity, education, and employment prospects.

The Sixth District found that the trial court improperly combined the two steps by finding the former wife proved need for alimony in the amount of $4,000, but at the same time finding she did not have need because she was able-bodied, employable, and had received substantial assets through equitable distribution—factors that are relevant only in the second step of the statutory analysis. By using these second-step considerations to nullify a clear finding of need in the first step, the trial court deviated from the correct legal procedure.

Also notable, the Sixth District held that the trial court erred by finding that the former husband lacked ability to pay. The trial court found that the former husband had a net monthly income of $2,980.58 which was less than his monthly deficit of approximately $3,800 based on his listed, reasonable expenses. However, the trial court failed to recognize that the former husband’s expenses were actually paid by his business. Therefore, his entire income constituted surplus funds, and he indeed had the ability to pay alimony.

The Sixth District remanded to the trial court for a proper reassessment of alimony consistent with the statutory framework, as well as a reassessment of child support since alimony impacts the calculation of child support.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

In Mannella, the Sixth District Court of Appeals recently departed from Florida’s five other appellate courts by declining to hold child support obligors to a heavier burden of proof when seeking downward modification of agreed-upon child support. [1]

Downward modification of child support requires a child support obligor to prove:

1. 1) a substantial change in circumstances
2. 2) not contemplated at the time of the final judgment’s entry
3. 3) that is material, involuntary, and permanent in nature. [2]

Although the burden of proof in family law cases is normally “preponderance,” courts previously held a child support obligor to a “heavier” burden of proof for downward modification of agreed-upon child support. This “heavier” burden only applies when the child support sought to be reduced was initially established by agreement of the parties rather than by the court at a contested hearing or trial. [3]

The Sixth District Court of Appeals reviewed Florida law and found that the concept of the “heavier” burden of proof originated in alimony cases and was incorrectly imported and applied to child support cases. [4]

In 1993, the Florida legislature revised F.S. 61.14, the statute governing modifications, to clear up the matter. The revised statute eliminated any distinction between downward modification of support, regardless of whether initially established by party agreement or judicial determination. Still binding, the statute provides:

When modification of an existing order of support is sought, the proof required to modify a settlement agreement and the proof required to modify an award established by court order shall be the same. [5]

Unfortunately, that did not settle the matter. Confusion was perpetuated by language in Overbey, a subsequent Florida Supreme Court case that again referenced the “heavier” burden, bringing it new life. [6] The Sixth District carefully considered the language in Overbey and found it to be non-binding surplusage. As such, the Sixth District held that F.S. 61.14(7) decisively eliminated the “heavier” burden of proof that courts had been imposing for downward modification of agreed-upon child support, and so the preponderance standard continues to apply.

Court Signals “Heavier” Burden of Proof for Modification of Agreed Alimony

Ironically, in determining that pivotal language by the Florida Supreme Court in Overbey constituted non-binding surplusage, the Sixth District included its own non-binding surplusage questioning whether F.S 61.14, governing modifications, eliminated the “heavier” burden for downward modification of agreed alimony, a view widely accepted by its sister courts.

In Mannella, the Sixth District noted that a “heavier” burden of proof was historically imposed on requests for downward modification of alimony established by agreement of the parties rather than by the court at a contested hearing or trial. [7] The 1993 revision to F.S. 61.14, governing modifications, is routinely cited by Florida courts as having eliminated the “heavier” burden of proof that previously applied to downward modifications of agreed alimony. [8]

The Sixth District observed that the phrase “order of support” as used in F.S. 61.14 is defined by F.S. 61.046(22)(b) to include child support, but not alimony. If so, F.S. 61.14 has no effect on prior law governing alimony modification. That means pre-statutory case law that imposed a “heavier” burden on alimony modification would continue to apply. This would represent a vast departure from governing law in most Florida appellate districts.

Conclusion

The Sixth District departed from its sister courts on two major points in child support and alimony modification cases. First, the Sixth District rejected post-statutory language in Overbey, a Florida Supreme Court case, that appeared to resurrect a “heavier” burden for downward modification of agreed child support as meaningless surplusage. Second, the Sixth District departed from its sister courts by questioning whether F.S. 61.14, the modification statute that eliminates the “heavier” burden in child support cases, applies to alimony cases.

The burden of proof is foundational in divorce and paternity cases and can tilt the court’s ruling for or against you. It is important to consult with an attorney to ensure your case is well-grounded and substantiated.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

Endnotes

[1] Mannella (2023)

[2] Poe (2011) (citing Pimm 1992)

[3] Arrington (Fla. 1st DCA 2021); Catalano (Fla. 2d DCA 2001); A.G.W. (Fla. 2d DCA 2023); Schmachtenberg (Fla. 3d DCA 2010); Knight (Fla. 4th DCA 1997); Pohlmann (Fla. 5th DCA 1997)

[4] Tietig (1992); Bernstein (1979)

[5] F.S. 61.14(7) (1993)

[6] Overbey (1997)

[7] Nixon (1967); Ohmes (1967); Fowler (1959); Scott 1973; Bernstein (1986)

[8] Knowlton (Fla. 1st DCA 2019); Dogoda (Fla. 2d DCA 2017); Garvey (Fla. 4th DCA 2014); Ellisen (Fla. 4th DCA 2014)

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Child Support in Florida

• Purpose: Provides for the child’s needs, including food, housing, clothing, healthcare, education, and extracurricular activities.
• Calculation: Florida uses a formula outlined in F.S. 61.30, commonly known as “Child Support Guidelines.” The major variables in this calculation include:
  • Each parents’ income.
  • The number of children.
  • The parenting time each parent has with the child.
  • Child-related expenses (e.g., healthcare and childcare costs).

Adjustments may be made for prior-born children; extraordinary medical expenses or special needs; social security income received for the subject child’s benefit; and various other special circumstances.

• Duration:
  • Generally paid until the child turns 18.
  • May continue until 19 if the child is still in high school and expected to graduate before age 19.
  • For disabled children, support can extend indefinitely.

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Alimony in Florida

• Purpose: Helps a lower-earning or non-earning spouse maintain a standard of living similar to what they had during the marriage.
• Types of Alimony:
  • Temporary: Helps the recipient meet living expenses during the pending divorce case
  • Bridge-the-Gap: Short-term support for specific needs as the spouse transitions to self-sufficiency (maximum of 2 years).
  • Rehabilitative: Helps the recipient gain skills or education to become self-supporting.
  • Durational: Support for a set period, not exceeding the length of the marriage.
• Calculation: Although there is no fixed formula in Florida, a new law was passed in 2023 that caps durational alimony at the lesser of actual need or 35% of the difference in the parties’ net incomes. Other classifications of alimony are based on a variety of other factors, such as the recipient’s need; the payor’s ability to pay; the length of the marriage, and the standard of living during the marriage.

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Comparison of Alimony vs Child Support in Florida

1. Child Support is mandatory. Child support calculations follow strict guidelines and generally cannot be waived by agreement between parents. This means child support payments are typically non-negotiable and often take precedence over alimony.
2. Alimony is negotiable and can be waived. An eligible spouse may accept alimony in a lower amount or even waive alimony.
3. Concurrent Payments: If you are obligated to pay both child support and alimony, child support is calculated first. Alimony payments may then be adjusted based on your remaining financial ability after meeting your child support obligations.

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Alimony vs. Child Support: Which Costs More?

• Child Support may cost more if you have a high income or multiple children, as Florida’s guidelines are based on combined parental income and parenting time.
• Alimony could cost more in cases involving long-term marriages or significant income disparities.
• If you have both obligations, your financial situation and the court’s decisions will determine the total amounts.

Call DeVoe Law Firm if you have any questions about child support or alimony. As part of representation, we will let you know what you can expect to pay in your divorce or father’s rights case in Orlando, Florida.

Documentary Evidence

1. Financial Records: Bank statements, tax returns, pay stubs, and expense reports to demonstrate income, assets, or debts.
2. Communication Records: Text messages, emails, and social media posts to show behavior, intent, or interactions between parties.
3. Legal Documents: Prenuptial agreements, custody orders, or divorce decrees.
   Medical or School Records: Evidence of a child’s health, needs, or performance in school.

Testimonial Evidence

1. Party Testimony: Statements made by the parties involved in the case.
2. Witness Testimony: Friends, family members, or professionals (e.g., teachers or counselors) who have relevant information about the situation.
3. Expert Testimony: Opinions from professionals like child psychologists, financial analysts, or social workers.

Physical Evidence

1. Photos relevant to issues in the case
2. Videos relevant to issues in the case
3. Physical items relevant to issues in the case

Demonstrative Evidence

1. Charts
2. Diagrams
3. Timelines
4. Other summaries that visually represent events or data to clarify complex issues

Circumstantial Evidence

1. Indirect evidence that implies a fact but does not directly prove it, such as showing a pattern of behavior.

Affidavits or Declarations

1. Written statements made under oath, often used in custody or restraining order cases.

Other Key Considerations:

1. Relevance: The evidence must relate directly to the issues in the case.
2. Admissibility: Evidence must comply with the rules of evidence, including being obtained legally and not being overly prejudicial or hearsay (unless exceptions apply).
3. Credibility: The court will evaluate the reliability and authenticity of the evidence.

Consulting an attorney can help ensure the proper gathering, presentation, and challenge of evidence in family law cases.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

How a dependence tax deduction is determined

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Even when parents have shared custody, it rarely works out where the child spends an even 50 percent of his or her time with both parents. The IRS gives the parent who had custody of the child the most throughout the year a tax break. Even if your divorce decree states that you share equal custody, both parents cannot receive the tax break. Below are ways to determine which parent can claim a dependent on their taxes:

The parent who spent the most days throughout the year with the child can claim him or her as a dependent. If you had your child 55 percent of the time and your ex had your child 45 percent of the time, you may claim a dependent.

If your child in fact did spend exactly half the time with both parents, the parent with the highest adjusted gross income gets to claim your child as a dependent.

Waiving the dependent tax deduction

A divorced couple can agree to terms on their own to allow one or the other to claim their child. The one who qualifies to claim the dependent can waive the deduction. In order to do this both parents must still pay 50 percent of the child’s living expenses for the year and the equal custody agreement must be memorialized in a court ordered divorce decree. If you and your ex agree to these terms, the one waiving the dependent can sign IRS Form 8332, giving the other the ability to claim the child as a dependent.

Factors That Go Into a Child Custody Decision

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The following are the factors a judge considers when making a decision about child custody:

• your child’s age
• the mental and physical well-being (or lack of it) of each parent
• each parent’s care taking capacities and the home environment that each parent could provide to the child
• the role of each parent thus far in taking care of the child
• the child’s relationship to each parent
• the time available to each parent to be with the child, as the judge may wish to maximize the child’s time with a parent as opposed to a babysitter or daycare center
• the environment that the parent can create for the child
• the presence of siblings in the family and the siblings’ relationship to each parent and to each other
• prior bad acts of either parent (as, for instance, abuse and neglect)
• parental drug or alcohol problems
• religious factors
• the willingness of each parent to keep the other parent involved in the child’s life and to facilitate the other parent’s access to the child
• each parent’s adult relationships including non-marital sexual relations.

In the long run, the judge wants to do what’s best for the child. If time sharing and 50/50 custody is a possibility for the child, that will be the plan set in place.

How to Divide Your Assets in a Divorce

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Before a divorce can be granted, all of the couple’s assets must be divided in a way that is agreed upon by both parties. This can get really difficult when it comes to the couple’s home, vehicles, securities, valuable collectibles, retirement benefits, and household items. But if you can both agree, it will make the divorce process quicker and easier. The following may help you divide your assets amicably:

Make a list

Make a list of all of your assets with your spouse. You should include your home or any joint property (land, a vacation home, lake cabin, etc), all vehicles, bank accounts, securities (stocks, bonds, money market accounts, CD’s), valuable collectibles, household items including furniture and appliances, and retirement savings and plans.

Play Nice

If you and your spouse can make a list in an amicable way and agree to how you’re going to divide your possessions you can save a lot of time and money. When there are property disputes, a third party has to be brought in to help you come to an agreement. Ninety percent of divorces are settled without a trial. Seeing a divorce mediator or hiring a divorce attorney can help you handle your property division.

Dividing the House and Car

The home and cars are often the cause of dispute in a divorce. The home is usually given to the parent with primary custody of the children if there are any. The car is more complicated and isn’t necessarily given to the spouse who solely holds the title.  The car may become marital property and given to a spouse depending on how much it’s worth.

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Are You Entitled to Alimony?

Deciding if a spouse will be awarded alimony in a divorce is relatively simple. When one spouse makes significantly more money than the other, that spouse will probably be required to pay the other alimony. But, if both make around the same amount each year, neither is usually required to pay alimony.

How is Alimony Set by the Court?

Determining whether a spouse will receive alimony after a divorce is the easy part. Determining the amount to be paid isn’t as simple. The following factors are considered when determining the amount of alimony to be paid:

• how much money each person could reasonably earn every month
• what the reasonable expenses are going to be for each of them
• whether an alimony award from one to the other would make it possible for each to go forward with a lifestyle somewhat close to what the couple had before they split—known in divorce law as “the standard of living established during the marriage”

If there isn’t enough money for both parties to establish a standard of living close to their marital standard of living, judges may look for ways to make the divorcing party share in the financial pain equally.

How Long Do Alimony Payments Last?

The amount of time alimony is required to be paid varies from each couple. Payment are usually always paid each month and can last until:

• a date set by a judge several years in the future
• your former spouse remarries
• your children no longer need a full-time parent at home
• a judge determines that after a reasonable period of time, your spouse has not made a sufficient effort to become at least partially self-supporting
• some other significant event, such as retirement, occurs, convincing a judge to modify the amount paid
• one of you dies

Every case is different, and not every divorce is as easy as determining who makes more. Contact us to speak to a divorce lawyer and ensure you get what you deserve.

Different types of Florida alimony

Photo by Billie Grace Ward.

When it comes to family courts approving alimony, there are a few different types, determined by the family situation:

• Temporary alimony – This is used during divorce proceedings themselves, and only when one spouse is in need of financial support while in the process of filing. Once the divorce is finalized, support stops.
• Rehabilitative alimony – This is a time-sensitive plan used specifically for acquiring training or education, wherein one partner will submit a detailed outline covering how long they need support for, and the amount of money the education/training will require.
• Bridge-the-gap alimony – An extremely short-term form of alimony (max 2 years), this is usually used as a form of support during temporary financial hardship following divorce. For example, if the individual is attempting to sell property (houses, vehicles, etc.), this can be used to cover living expenses until the sale is finalized.
• Permanent alimony – This one requires judges to prove that one spouse will likely be unable to become self-supporting in the future, but in cases where one spouse’s current economic situation is likely to be permanent, it is useful.
• Durational alimony – This is generally only used when other forms of alimony do not apply, but there is still need for spousal support. The reason it’s called durational is because the term is it valid for can be no longer than the length of the marriage up to the point of divorce.

Factors in alimony amount

Once the court has determined the type of spousal support that is appropriate, it then comes down to determining the amount. There are myriad factors that come into play here, but some of the common ones include:

• Each spouse’s age, and physical/emotional condition
• Sources of income available to each spouse compared to living costs
• Each spouse’s potential earning capacity, including employment history, education, vocational skills, etc.
• Current marital standard of living
• How long the marriage was
• How much each spouse contributed to homemaking, child care, and supporting the other spouse during education/career-building
• Whether adultery was present in the marriage

This list is nowhere near exhaustive, but it gives you a few ideas of criteria that judges will consider when determining alimony amounts. If you are facing alimony currently, or are considering alimony in regards to a pending divorce, do not hesitate to get in touch with a divorce attorney immediately.