January 9, 2023

Just before we rang in the new year, a Florida court issued two surprise decisions which place retroactive alimony under the gun. Is a court order making alimony retroactive to the date of filing of the petition for dissolution of marriage constitutional or judicial overreach? The First District Court of Appeal is debating the issue.

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 and, in part, 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 – about 33 months of retroactive alimony at nearly $5,000 a month. The Former Husband appealed.

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.

Retroactive alimony is simply when an order awards alimony and fixes the starting date for the payments back to the date of the filing of the petition. Retroactive alimony awards can be expensive in cases because by the time an alimony award issue, several months or even years could have elapsed since the filing date.

Florida courts have been awarding retroactive alimony, when appropriate, for decades. In fact, retroactivity has been the rule in Florida rather than the exception.

In the first case, the 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 which noted:

“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.

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.

The opinion was not without controversy. The dissent compared an award of retroactive alimony to a simple nunc pro tunc award, a type of order recognized in American and English courts for centuries.

The dissent also disagreed that three judges joining in a concurring opinion made the ruling binding precedent on the District Court noting: the “opinion of the Court” is the per curiam opinion, not the concurrence.

Moreover, the dissent pointed out that it isn’t fair for a court to spontaneously issue an opinion on an unraised/unbriefed issue and tell the parties they are free to litigate the issue on remand in the trial court, thereby imposing additional costs and burdens on the actual litigants who have made clear they have no disagreement with existing law.

Congratulations to AAML Fellow, Shannon Novey, who represented the successful appellant.

Ronald H. Kauffman is the founder of Ronald H. Kauffman, P.A. in Miami. He is board certified in marital and family law, a Fellow of the International Academy of Family Lawyers and of the American Academy of Matrimonial Lawyers and has repeatedly been recognized as a top rated family lawyer in Miami by Super Lawyers.