Weininger v. Weininger: What it Means for Florida Alimony


On October 10, 2019, the Florida Third District Court of Appeal published an opinion regarding Florida alimony that will be binding on cases in Miami-Dade County. That case, Weininger v. Weininger, 3D17-49, addresses circumstances in which it is proper for a trial court to deny permanent alimony in a divorce following a long-term marriage.

The Facts of the Case

Janet Ray Weininger and Michael J. Weininger married in February, 1977. Their two children were adults at the time of the parties’ divorce filing on January 28, 2009.

During the marriage, Michael, a pilot, was the primary earner. He was an Air Force pilot when the parties met, and later worked for Delta Airlines. Because of the amount of travel inherent in his work, Janet stayed at home to care for the parties’ children.

The Weiningers lived well on Michael’s income, acquiring several real estate properties, sending their children to private school, and paying for their college education. The couple also received rental income from their various properties.

During his career with the Air Force, the Reserves, and Delta, Michael acquired a number of insurance policies and retirement accounts. After a forced retirement, he began receiving military retired pay at age 60 in December 2012.

Janet, during the marriage, acquired an IRA of her own, as well as a $9 million settlement as a result of a lawsuit over her father’s death. She used most of the funds to establish a trust for her benefit and that of her children and grandchildren. Per Janet’s testimony, she could only use trust distributions for medical care or educational expenses; disbursements for other purposes, such as ordinary living expenses, would need to be repaid to the trust.

The parties separated and Janet filed for divorce from Michael, alleging infidelity. Michael, though residing out of state with his mistress and her son, continued to pay most of the expenses for the parties’ properties during the divorce. These properties were to be divided as marital assets.

Janet sought permanent alimony, based on the length of the marriage and the large difference between her income and Michael’s. Michael countered that Janet voluntarily supported their adult children, depleting her personal income, and that because of the equitable distribution of marital assets and his own forced retirement, the parties were in the same financial circumstances, meaning alimony was not needed.

In a bench trial, the court found Janet financially able to meet her needs and denied her claim that permanent alimony was appropriate.

The Court’s Reasoning Regarding Permanent Alimony

Janet appealed, arguing that the court abused its discretion in denying an award of alimony. The Court of Appeal affirmed the trial court’s findings.

Per Florida Statutes section 61.08(2), in determining whether to award alimony in a Florida case, courts must first determine whether either party has an actual need, and whether either party has the ability to pay. In deciding whether to award alimony, a court must consider a number of factors, including the parties’ standard of living during the marriage, the length of the marriage, and the financial resources of the parties, including assets distributed during the divorce.

Florida Statutes section 61.08(8) discusses permanent alimony, noting that it may be awarded “to provide for the needs and necessities of life as they were established during the marriage...for a party who lacks the financial ability to meet his or her needs...following a dissolution of marriage.” In Florida, a “long-term” marriage is one of 17 years or longer. There is a rebuttable presumption in favor of permanent alimony in a long-term marriage. Note the word “rebuttable:” a trial court can rebut the presumption in favor of an award of permanent alimony. If the court makes detailed findings of fact regarding the requesting spouse’s need and the other spouse’s ability to pay, in addition to the relevant statutory factors, it may rebut the presumption.

In the Weininger case, the court acknowledged the couple had a long-term marriage, and so began by assuming that Janet was entitled to permanent alimony. However, after analyzing the available evidence, the court reached a number of conclusions which let it to rebut the presumption in favor of permanent alimony and deny Janet’s request.

First, the court concluded that Janet had significant income from the trust; second, it concluded that she would also receive significant assets from the equitable distribution of marital assets; and third, the court noted that she was able-bodied, educated, and capable of working. In other words, she had not met her burden of proving actual need. What’s more, Michael, having been forced to retire, lacked the ability to pay alimony.

Trial courts have the discretion to award alimony or not, and their decisions are reviewed by the Court of Appeal for abuse of that discretion. In the Weininger case, the Court of Appeal found that the trial court in the Weininger matter did not abuse its discretion when it rebutted the presumption that Janet Weininger was entitled to permanent alimony because of her long-term marriage, and denied alimony.

What You Need to Know

As the Weininger case shows, courts may begin by assuming permanent alimony is appropriate in a long-term marriage, but the needle can, and should, be moved by evidence showing that the party requesting it does not have actual need, or that the party being asked to pay does not have the ability to do so. It is not enough just to have evidence; what matters is how it is presented to the court to help the court “connect the dots.” The court in this case stated that Janet Weininger did not present credible evidence of her need; on the other hand, Michael Weininger’s assertion that his forced retirement made him unable to pay was found credible.

An experienced Florida divorce attorney can be the difference between the court seeing the evidence it needs to find in your favor, or having cause to find against you. If you have questions regarding permanent alimony or other types of alimony in Florida, please contact Miami family law attorney Antonio Jimenez.

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