In Jayne LoConto v. Richard LoConto (Fla. 4th DCA, May 28, 2025), the appellate court reviewed a final judgment that set durational alimony at 500 dollars per month after a fifty year marriage. The former wife was seventy six and totally blind. The former husband was seventy eight and retired. The trial court found her reasonable monthly need was 2,477 dollars. She received 1,228 dollars in Social Security. He received 3,824 dollars per month from Social Security and a pension and showed a monthly surplus of 949 dollars.
The court applied section 61.08(8), Florida Statutes. That subsection caps durational alimony at the lesser of the obligee’s reasonable need or 35 percent of the difference between the parties’ net incomes. The court calculated the 35 percent cap as 909 dollars. It still awarded only 500 dollars based on concern about the husband’s ability to maintain a surplus.
The Fourth District reversed the alimony amount. The panel held that the trial court abused its discretion because the findings showed clear need and clear ability to pay an amount up to the statutory cap. The denials of attorney’s fees and retroactive alimony were affirmed as within the court’s discretion. A separate opinion concurred in reversing the alimony amount and dissented on fees and retroactivity. The case was remanded for an alimony award consistent with section 61.08(8).
Below is a deep dive for Florida families and practitioners. A Tampa divorce lawyer can apply these lessons in Hillsborough County and across the Tampa Bay courts on similar facts.
The Core Holding
The appellate court directed the trial court to raise the durational alimony award. The findings supported a higher figure because:
- The former wife’s reasonable monthly need was 2,477 dollars.
- The former wife’s income was 1,228 dollars, which left a deficit even before alimony.
- The difference between the parties’ net incomes was large enough to produce a 35 percent cap of 909 dollars.
- The former husband had regular monthly income and a surplus on his own affidavit.
These facts required alignment with section 61.08(8). The cap set the ceiling. The former wife’s need set the justification. The former husband’s ability set the floor above 500 dollars. The record supported an award at or near 909 dollars.
A Tampa divorce lawyer should expect similar scrutiny on any alimony figure that sits well below the statutory cap when the findings show both need and ability.
Section 61.08 After the 2023 Amendments
Durational alimony remains the common form after long marriages with retirement age parties. The 2023 amendments tightened structure. The statute now:
- Preserves need and ability as the first questions the court must answer.
- Sets the amount as the lesser of reasonable need or 35 percent of the net income gap.
- Requires net income calculations that align with section 61.30 methods.
- Sets duration limits tied to the length of the marriage.
The cap did not reduce the court’s obligation to measure need and ability. The cap functions as a guardrail. The analysis still starts with facts on monthly budgets and real ability to pay. A Tampa divorce lawyer will press for precise findings on those points because the statute forces the court to link the number to the evidence.
Why the Trial Court’s Number Failed
The trial court accepted the cap calculation of 909 dollars. It still declined to award that number. The judgment stated that a larger award would leave the former husband with little or no surplus. The appellate court rejected that reasoning because the math in the judgment showed otherwise. At 909 dollars, the former husband would still retain almost all of his regular income and would not fall into a monthly deficit. The former wife, even at 909 dollars, would still face a shortfall. The record therefore supported a higher award than 500 dollars.
The lesson is simple. Findings must support the outcome. If the court writes that the cap is 909 dollars and finds need and ability, the figure cannot drop to 500 dollars without evidence that would justify the gap. A Tampa divorce lawyer can challenge a number that lacks support in the court’s own math.
Long Marriages and Retirement Age Parties
A fifty year marriage with a blind spouse who depended on the other spouse for decades presents a clear case for durational alimony at a meaningful level. The equitable principles from Florida Supreme Court cases remain alive under the statute. A party should not move from stability into hardship while the other party sits on a monthly surplus. That theme ran through the court’s analysis.
For seniors in Tampa who face divorce late in life, the statute provides structure, but courts still look at human reality. A Tampa divorce lawyer who presents clean affidavits, clear budgets, and credible testimony about medical limits will often secure a fair number even with a cap in place.
Attorney’s Fees and Retroactive Alimony
The appellate court affirmed the denials of fees and retroactivity based on discretion. The separate opinion would have reversed on those issues. The debate highlights two takeaways.
- Fee entitlement under section 61.16 still turns on need and ability. Equal initial assets do not end the inquiry. A spread in income can justify a fee award. A Tampa divorce lawyer will build a record on fee need to avoid an inequitable depletion of one party’s assets.
- Retroactive alimony remains fact specific. Temporary awards can shift later. Courts will examine pleadings, stipulations, and the temporary order’s language. Precision matters. A Tampa divorce lawyer can preserve retroactivity by listing it for trial and documenting the shortfall period.
Building a Record That Survives Appeal
Income
- File a complete financial affidavit with bank statements and award letters for Social Security or pensions.
- Show regular deposits and any withholding that affects net income.
- Use a simple budget table that matches the statute’s net income method.
Need
- List actual costs for housing, food, medical care, medications, assistive devices, transportation, and in home support when needed.
- Support each category with bills and receipts.
- Avoid inflated numbers. Courts spot padding.
Ability
- Present the payor’s net income and fixed expenses.
- Identify discretionary items honestly.
- Show that a higher alimony figure fits within the payor’s budget without pushing the payor below a reasonable lifestyle.
A Tampa divorce lawyer who packages these three parts in a tight file will give the trial court confidence and reduce the risk of a remand.
Applying the 35 Percent Cap
A quick example based on the case math helps:
- Wife net income: 1,228 dollars
- Husband net income: 3,824 dollars
- Difference: 2,596 dollars
- Thirty five percent of difference: 909 dollars
- Wife reasonable need: 2,477 dollars
The amount is the lesser of 2,477 dollars or 909 dollars. The cap therefore sets 909 dollars as the ceiling. The court still must weigh ability. The payor’s budget showed a surplus. The findings thus support 909 dollars or a figure near that number. A Tampa divorce lawyer will present the calculation in a single exhibit so the court can adopt it in the judgment.
Housing Choices and Asset Depletion
The trial court criticized the former wife’s hotel spending. That criticism influenced fees and retroactivity. The separate opinion argued that the spending did not erase need because her income never met her reasonable expenses. The difference in views shows a real world lesson. Spending choices during the case affect credibility and remedies. Families facing a move should document efforts to find safe, cheaper housing. That record helps on fees and prevents a narrative that blames a party for asset depletion.
A Tampa divorce lawyer can guide clients toward budget aligned choices during the case. That guidance often saves thousands of dollars at the end.
Practical Guidance for Payors
- Bring full transparency on income sources.
- Show a real budget that accounts for rising medical and living costs in retirement.
- Propose an alimony number that fits within the cap and your budget rather than offering a token figure. Reasonable proposals carry weight.
A Tampa divorce lawyer can frame a payor’s position without hostility and still protect monthly stability.
Practical Guidance for Recipients
- Keep a steady record of monthly costs. Use a simple spreadsheet and save every receipt.
- Obtain a letter from doctors about permanent limitations that affect earning ability or daily living needs.
- Present a housing plan with realistic rent and utilities.
A Tampa divorce lawyer will turn that record into clear findings on need.
Common Missteps That Hurt the Case
- Vague budgets with round numbers and no proof.
- Confusion about gross versus net income.
- Arguments that ignore the 35 percent cap.
- A request that exceeds the cap without a legal basis.
- Spending that looks wasteful during the case without a paper trail that shows no better option.
A careful plan avoids these pitfalls. A Tampa divorce lawyer can set that plan on day one.
How This Decision Guides Tampa Cases
While the case arose in the Fourth District, the logic on 61.08(8) applies statewide. Tampa judges must apply the cap and still honor need and ability. The core lesson is not district bound. The number must fit the math and the findings. A court that writes down the cap and the budgets cannot select a much lower figure without support in the record.
A Tampa divorce lawyer will cite this reasoning when a low award clashes with the court’s own math.
Strategy Tips for Hearings and Final Judgments
- Prepare a one page exhibit that shows both parties’ net income lines, the difference, and 35 percent of that difference.
- Provide a second one page exhibit that lists the recipient’s monthly deficit after Social Security or pension income.
- Offer proposed findings that the court can insert into the final judgment. Judges welcome clean language that follows the statute.
- If fees are in play, give the court a short schedule that compares incomes and shows how a fee award prevents inequitable depletion.
This structure helps the court and protects the record. A Tampa divorce lawyer who supplies this package often secures a clear, appeal proof judgment.
The Human Dimension
A late life divorce with disability issues presents strain that goes beyond numbers. Blindness affects housing, transportation, and daily living costs. Retirement income has limits that fixed budgets must respect. Courts read those realities through the statute. They also expect calm planning from both sides. Compassion with precision wins hearings. A Tampa divorce lawyer serves both needs by presenting firm numbers in a respectful voice.
What This Means for Settlement
This decision supports settlements that anchor alimony near the cap when budgets show need and ability. Payors can accept a higher number without fear that the court will reduce it on vague claims about surplus. Recipients can accept a number at the cap with confidence that it reflects the statute. A Tampa divorce lawyer can draft a settlement that mirrors these metrics and avoids later fights.
Key Takeaways
- The court must start with need and ability and then apply the 35 percent cap.
- Findings that show need and surplus make a very low number vulnerable on appeal.
- Fees and retroactivity remain discretionary but turn on documented need and documented income gaps.
- Spending choices during the case can shape fee outcomes, so keep records and select reasonable options.
- Clean, simple exhibits that track the statute help the court and reduce the chance of remand.
A Tampa divorce lawyer who follows these steps can secure a fair outcome and keep families out of appellate court.
Frequently Asked Questions
What is durational alimony under the new statute
Durational alimony supplies ongoing support for a set period after a marriage ends. The amount cannot exceed the lesser of the recipient’s reasonable need or 35 percent of the difference between the parties’ net incomes. Courts still require proof of need and proof of ability to pay.
How do courts calculate the 35 percent cap
The court subtracts the recipient’s net monthly income from the payor’s net monthly income. It takes 35 percent of that difference. Net income follows the child support method. A Tampa divorce lawyer will prepare a worksheet that shows the correct numbers.
Can a court award less than the cap
Yes. The cap is a ceiling. The court can award a lower number if the payor lacks ability or if the evidence supports a smaller amount. The court must explain the reason with findings that fit the math.
Does a very long marriage change the cap
The cap still applies. A long marriage affects duration and strengthens the case for an award near the cap when need and ability exist. A Tampa divorce lawyer will argue duration and amount based on those facts.
What if the payor’s income comes only from Social Security and a pension
That income still counts. The court looks at net income and monthly expenses. If a surplus remains after reasonable expenses, the court can award alimony within the cap.
How do housing choices affect attorney’s fees
A party who spends far above market rent during the case risks a finding that fees are not warranted. Court findings often focus on reasonableness. A Tampa divorce lawyer will guide clients on housing that matches the budget and the record.
Can the court award retroactive alimony
It can, depending on pleadings, stipulations, and the history of temporary support. The judge will review need and ability for the past period. Clear records help. A Tampa divorce lawyer preserves the issue early in the case.
What evidence helps most on need
Receipts, invoices, leases, medical statements, prescription costs, and transportation costs. A short spreadsheet with monthly totals gives the judge a clear picture.
What evidence helps most on ability
Payor bank statements, pension and Social Security award letters, and a budget that shows stable costs. If a surplus exists, the court will consider it.
How does this case guide Tampa families
It shows that courts must match the number to the statute and the findings. When the record proves need and ability, a number far below the cap will not stand. A Tampa divorce lawyer can use this case to frame settlement and trial strategy.
If you face alimony questions after a long marriage, bring your monthly records and your award letters. A Tampa divorce lawyer can align your case with section 61.08, present clear findings, and pursue a number that reflects real need and real ability within the cap.