I'm Separated from My Spouse. Must I Still Pay Temporary Alimony if She has a Large, Separate Inheritance?

Separated and heading towards divorce, is one spouse still responsible for providing temporary support to the other during litigation if there are separate, non-marital funds of $400,000 available? 

Surprising to many, the answer is yes.

In the recent Second District Court of Appeal case of Featherston v. Featherston, a couple had been married for about 20 years when the wife filed for divorce.  She had been a stay-at-home mom of three children for much of the marriage, but near the end of it, worked in a retail store making about minimum wage.  The husband earned about $70,000 per year.  Notably, the wife inherited $400,000 from her parents during the marriage, which she put into a separate, non-marital account.

The litigation lasted for about 18 months, and although the husband made sporadic child support payments during the separation, he failed to pay any temporary spousal support.  The wife was forced to support herself and the children by withdrawing funds from her non-marital account during the eighteen months.  At the time of trial, her non-marital account was valued at approximately $200,000.

The trial court ruled that the husband had to pay the wife spousal support of $1,250 per month, but only prospectively.  The court noted, "The wife made much of the fact that she had to use non-marital resources to support herself during the separation.  There is no indication from the law that there is some prohibition against this." 

Clearly, the trial court reasoned that since the wife had this non-marital asset, she was able to support herself without her husband's assistance.

However, the appellate court reversed the trial court's ruling on this issue, concluding that "a spouse should not necessarily have to consume a separate asset to support himself or herself during the pendency of a marriage proceeding to maintain the standard of living enjoyed by the husband and wife during the marriage." 

The husband was just as able to support his wife during the pendency of the case as he was at the time of trial.  Since the monthly spousal support award of $1,250 was not appealed, the appellate court ruled that Husband should have been paying the wife $1,250 per month throughout the eighteen month separation (plus interest).  As a result, he must now pay the wife the normal $1,250 monthly alimony payment, but he must also pay her back the arrearages that have accrued over the 18 months of litigation.

As a practicing family law attorney in Carrollwood, it is common knowledge that the obligation to support a spouse remains intact until a divorce is final.  One spouse cannot simply ditch his or her duty to the other once the parties separate.  In fact, this responsibility to the other party cannot even be consensually waived in a Prenuptial Agreement.  If parties attempt to do so, Florida courts will not uphold its validity.

Like it or not, even if parties are separated, a married couple is still a married couple.  Along with that status comes a duty to support one another, and while every case has varying facts that may render a different conclusion, it is important to remember that this is one responsibility that will not dissipate until the marriage does.