A Florida trial court deciding whether to award alimony must first make findings on need and ability to pay, meaning whether the spouse asking has an actual need and the other spouse can pay, based on each party’s net income. The Fourth District Court of Appeal held that on November 4, 2026, in Zalkin v. Zalkin, Nos. 4D2025-0278 and 4D2025-0737, and reversed four rulings in a dissolution judgment. It affirmed the denial of the wife’s request for attorney’s fees and costs. Associate Judge Rebecca White wrote the opinion, joined by Chief Judge Gerber and Judge Klingensmith.
Background
The parties married in 2004 and have two minor children. After a two-day trial in February 2024 and a separate fees hearing in October 2024, the trial court entered a final judgment in November 2024. It denied the wife’s requests for alimony and attorney’s fees, gave the husband 100% timesharing and ordered a temporary parenting plan. The wife appealed. While the appeal was pending, the husband asked the trial court to correct the judgment, and the court amended it to make the parenting plan permanent, to state that the husband had sole parental responsibility, and to add the child support guidelines. The two appeals were consolidated.
Need and ability to pay
Section 61.08(2)(a), Florida Statutes (2023), says a court “shall first make a specific, factual determination” on need and ability to pay before it weighs the other alimony factors. The trial court here weighed the section 61.08(3) factors without making that determination first, and it imputed gross rather than net income to the wife. Relying on Reese v. Reese (Fla. 6th DCA 2023), the court held that was error. It also held the trial court erred by not considering the husband’s voluntary 401(k) contributions, which it must consider on remand when deciding his ability to pay.
Imputed income
The court split its review of the trial court’s other findings. It upheld the finding that the wife was voluntarily underemployed, because she holds a master’s degree, left a teaching job for a teacher’s assistant job, and testified she did not plan to seek a teaching position. But the party seeking to impute income “bears the burden of showing both employability and that jobs are available,” and the undisputed testimony was that no teaching position for which she qualifies was available. The imputed salary was therefore unsupported. The imputed investment income also failed because the trial court did not find that drawing on the retirement assets would leave the principal untouched. The court did affirm the finding that money from the wife’s father was a continuing gift and not a loan, and the finding of a supportive relationship with her boyfriend, but told the trial court to reconsider both on remand as part of a complete need-and-ability analysis on net incomes.
Child support, the amended judgment and parental responsibility. Child support was remanded because it rested on the unsupported imputed income, did not consider the wife’s detriment-related expenses, and did not account for a single child after the older child’s entitlement ends. The order amending the judgment was vacated: once the wife filed her notice of appeal, the trial court lacked jurisdiction to make what the court called substantive amendments. That vacated amendment is also where the trial court had added a detriment finding to support giving the husband sole parental responsibility — the original November 2024 judgment had none. Because the amendment is void for lack of jurisdiction, that finding is gone along with it. The remand reaches more than parental responsibility alone: the husband’s 100% timesharing award and the temporary parenting plan the now-vacated amendment had made permanent are unsettled again too, not just the decision-making authority question. On parental responsibility specifically, the original judgment made no detriment finding yet gave the husband ultimate decision-making authority over all matters, which the court, quoting an earlier case, said meant “the trial court essentially nullified the award of shared parental responsibility.” On remand the trial court must either grant shared responsibility with ultimate authority only on specific issues, not including medical issues, or make findings to support sole parental responsibility.
Attorney’s fees
The court affirmed the denial of the wife’s fee request. The trial court found she had a need for fees but the husband lacked the ability to pay, and competent substantial evidence supported that. Her argument about reserving jurisdiction over appellate fees was moot for the same reason.
What this does and does not mean
The court did not hold the wife is entitled to alimony; it held the findings required before a decision were missing or unsupported, and sent the issue back. The opinion does not say what the trial court should decide on remand. Its description of the 2024 temporary-fees ruling shows this case had been up before. The opinion cites the statute in both its 2023 and 2024 versions, and one sentence in the alimony conclusion is garbled, so a reader should check the PDF for the court’s exact wording. The opinion is not final until any timely motion for rehearing is resolved.
Related decisions: Can a Florida Appeals Court Review an Untimely Challenge to an Injunction Entered in a Separate Case? No, the Sixth DCA Held Can a Florida Parent Vacate a Termination of Parental Rights Consent Default After Missing the Hearing? Not on This Record, Third DCA Holds
Read the opinion (PDF): Download the opinion (PDF)
Source: Zalkin v. Zalkin, Nos. 4D2025-0278 and 4D2025-0737 (Fla. 4th DCA Nov. 4, 2026). This article is general information, not legal advice.