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 an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition.

In Ramirez v. Gregory (February 14, 2025), the Fifth District held that retroactive child support must be specifically pleaded. The decision is consistent with the longstanding principle that the court lacks jurisdiction to enter any judgment on an issue not raised by the pleadings, unless the issue is tried with the express or implied consent of the parties. The case includes a useful practice pointer on handling unnoticed issues. The trial attorney should object, which preserve the issue for appeal, but then may proceed to enter evidence on the unnoticed issue.

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.

In a recent case, a father, Warren Foley, appealed a post-dissolution order denying his request to modify his child support obligation.

The parties’ marriage was dissolved in 2006. The trial court granted the mother, Gina Foley, primary custody of their son.

On appeal, Warren argued that the trial court erred in denying his request to modify his child support obligation. He specifically claimed that the trial court’s ruling was erroneous because it incorrectly stated that no financial affidavits were admitted into evidence during the modification hearing, and the court failed to recognize that the issue was tried by consent. An issue is tried by consent when both parties don’t object to the introduction of evidence on the issue.

In 2014, the father filed a petition seeking to modify the parties’ time-sharing arrangement. Along with the petition, the father filed a financial affidavit which, in pertinent part, stated that “this case involves the establishment or modification of child support.”

In response, Gina filed a pro se “Counter Supplemental Petition of Modification of Child Support.” That petition also sought modification of the parties’ time-sharing arrangement. In addition, she filed a financial affidavit that stated that the case involved “the establishment or modification of child support.”

During the modification hearing, Warren’s attorney stated: “I’ve prepared child support guidelines based on every other weekend with mom. We keep the same holiday schedule as has been previously ordered by the [c]ourt. The child support needs to be recalculated.”

Both parents provided their financial affidavits, and the trial court admitted them into evidence. In addition, Warren gave the judge a child support guideline document that had been prepared by his attorney.

The court modified the parent’s time-sharing arrangement and stated that child support “will be modified based upon a new child support guidelines worksheet to be prepared by [the father’s counsel].” However, after closer inspection, the trial court entered an order stating that the court lacked the “authority to modify child support where the matter was not plead or tried by consent and where no financial affidavits were submitted.”

Clearly the dots didn’t connect here, and Judge William D. Palmer of the Fifth District Court of Appeal reversed the order regarding child support. Contrary to the trial court’s ruling, Judge Palmer noted that the financial affidavits were admitted into evidence during the modification hearing. Further, the record demonstrated that both parties were on actual notice that child support modification was at issue in the trail proceedings.

The trial court’s order on child support was reversed, and the case was remanded for the trial court to consider the father’s child support modification request. Foley v. Foley, Case No. 5D16-1710 (Fla. 5^th DCA March 3, 2017).

Parents may experience a change of circumstances that justifies the modification of an earlier child support order. One of the most frequently seen reasons for a modification is an increase or a decrease in parental income. A change in the income of either parent can impact child support, so you should contact an experienced family law attorney if you need to discuss a modification. DeVoe Law Firm can help you modify your child support, abate child support, and terminate child support in eligible cases. Call our law firm for a free consultation.

Creating a Time-Sharing Schedule For Your Children

Your time-sharing schedule should include:

• An everyday schedule that shows when the child is with each parent on weekdays and on weekends
• A holiday schedule that shows which parent the child is with for holidays
• A summer break schedule that shows when the child is with each parent during summer break

Other things to consider as you make your schedule:

• Parents should work together to make a schedule they both like

• Your schedule should give your child frequent and consistent contact with both parents

• Your child’s age usually determines how long and how frequent visits are

• Usually all the children in a family stay together for time-sharing

• If parents are not able to agree on a schedule, the court will establish the schedule

Having the courts establish a time-sharing schedule 

Most courts follow similar guidelines when setting up a time-sharing schedule. For the everyday schedule for children 3 and over, there will be one residential parent, usually the one who lives near the child’s school, and one nonresidential parent. The child visits the non-residential parent:

• One evening during the week after school or work to 8:30 pm

• Every other weekend from Friday after school or work to Sunday evening at 6:00 pm or Monday morning when school starts

• If the child has school off on the Friday before the non-residential parent’s weekend, the weekend time starts on Thursday.

• If a child has school off on the Monday after the non-residential parent’s weekend, the weekend ends on Monday evening or Tuesday morning when school starts.

What is the first step in getting a divorce in Florida?

Photo by alexskopje.

The first step is filing a document called Petition for Dissolution of Marriage with the court. This document outlines the claims you have for property and child custody and must be delivered to the other spouse. If you have children, the state of Florida also requires you to attend a seminar on children and divorce.

The Divorce Process in Florida

One of the spouse files for divorce

The spouse filing for divorce is called the Petitioner. They are the one who initiates the procedure with the family law or domestic relations court.

The other spouse receives the divorce papers

The spouse who did not file for divorce is called the Respondent. This spouse will receive the dissolution of marriage papers from a service.

The divorce is filed with the court

The divorce will be handled in the Circuit Court for the county that you live in. The court will assign your divorce a case number and will have jurisdictional rights to grant orders concerning your property, debt division, support, custody, and visitation.

Primary documents are completed and filed

Documents such as the Petition for Dissolution of Marriage and the Final Judgment of Dissolution of Marriage are filed. The documents start and finalize the divorce in Florida, along with ten to 20 other documents. The County Clerk’s office will manage all of your paperwork and keep both parties and lawyers informed throughout the process.

Property is divided and distributed

Marital property is always divided equally in the state of Florida. Florida is an, “equitable distribution” state so judges always divide property in the fairest and most equal way.

Spousal support it determined

Spousal support is decided on a case by case basis so not all divorces require spousal support.

Child custody and support is granted

The state of Florida always strives to do what is best for the children involved and typically grants shared custody and only grants sole custody when it’s in the best interest of the child. Child support is based on the amount of income each parent makes. Income is usually verified by examining past W-2’s and with child support worksheets.

How a dependence tax deduction is determined

Photo by bambino.

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

Photo by pixabay

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.