Alimony

Alimony causes more cases to go to trial than any other issue in a Florida divorce.

Is There A Formula For Alimony in Florida

There is No magic Formula for Alimony in Florida.

The lack of a formula is a big reason that alimony is so hotly contested in Florida.

Instead of a formula,  Florida law provide “Factors” that are to be considered before coming to an alimony amount.

 

Florida Alimony Guide Image

 

What Types of Alimony Does Florida Have?

1. Rehabilitative Alimony
Rehabilitative alimony is designed to aid a party in establishing the ability to support his or herself by either:

a. Redevelopment of previous skills, licenses, or credentials, or
b. Acquiring education, training, or experience needed to develop appropriate skills or credentials.

The burden of proof is on the party seeking the rehabilitative award to provide a plan to the court that explains the object of the rehabilitation, the length of time needed, the cost associated, and the end result.

In other words, the court wants to know what the development or redevelopment of skills will cost the paying spouse, and why it will be worth it at the end of the day.

Absent extraordinary circumstances, a spouse can’t use the idea of rehabilitative alimony to abandon a field in which he or she has been trained to start a speculative business venture.

2. Bridge-the-Gap Alimony
Bridge-the-gap alimony, like the name implies, is used to bridge the transition for a spouse to go from married life to being single.

This award, unlike the other types of alimony, is unchangeable. It can be awarded in a lump sum, or in traditional monthly payments.

The burden is on the party requesting alimony to articulate a specific and definite short-term need. It’s especially appropriate when a spouse needs to relocate to a new address, either because the marital home is being sold or because the other party is keeping the marital home. Remember, there are moving expenses, first and last month’s rent, and more.

3. Durational Alimony
Durational alimony provides economic assistance for a set period of time when permanent alimony is not appropriate.

Durational alimony is appropriate following a marriage of short or medium duration, or during a long term marriage if the recipient spouse has a need that will terminate at some point in the future.

The length of durational alimony is limited to the number of months of the marriage. So, if the marriage was seven years and six months, then the maximum allowable durational alimony is for a term is the same.

4. Permanent Alimony
Permanent alimony is exactly what it sounds like: alimony that continues until one of the party’s is diseased, the recipient spouse remarries, or a change is ordered by the court.

Permanent alimony is made to provide a recipient spouse with the needs and necessities of life as they were established during the marriage.

Permanent alimony is made to provide a recipient spouse with the needs and necessities of life as they were established during the marriage.

While often we talk about standard of living of a spouse, or what the spouse has become “accustomed to”, the push in alimony has been to care more for the basic needs and necessities.

Permanent alimony is awarded in long-term marriages if appropriate after analyzing the factors listed below. It’s awarded in medium-term marriages only when clear and convincing evidence has been shown that it is appropriate to do so, and in short term marriages only in exceptional circumstances.

Permanent alimony is only appropriate when there is evidence that the recipient spouse does not have the ability to become self sustaining at some time in the future.

5. Nominal alimony
Occasionally the court finds alimony appropriate, but due to insufficient resources at the time of trial, the payor spouse can’t meet the obligation. However, there is an indication that they will be able to in the future.

Nominal alimony is effectively setting the alimony amount at one dollar but reserving jurisdiction for the court to come back and readdress the issue in the future when the payor’s financial situation regains its previous form.

What Types of Alimony Apply in My Case?

The type of alimony that a needy spouse has to pay is tied into the length of the marriage.

For example, just enough alimony to help a needy spouse get set up with moving expenses and a security deposit might be appropriate in a short term marriage (bridge-the gap).  But alimony until the day you die might be appropriate in a long term marriage (permanent alimony).

I Was Marred for less than Seven Years (“Short Term Marriage”)

The length of marriage is defined as the date of the marriage until the date of the divorce filing.

There is a rebuttable presumption that a short-term marriage is a marriage that is less than seven years. The length of marriage is defined as the date of the marriage until the date of the divorce filing.

Types of Alimony Available for Short-Term Marriage: Bridge-the-gap, rehabilitative, durational, or any combination of the above.

Permanent alimony is only allowed in a short-term marriage if the court finds all of the other types of alimony inappropriate AND there are exceptional circumstances. For example, in one case the court awarded permanent alimony in a short-term marriage because the wife was left permanently unable to work and support herself due to an event that occurred during the marriage.

I Was Married for More Than Seven Years But Less Than Seventeen (“Medium-Term Marriage”)

There is a rebuttable presumption that a medium-term marriage is marriage more than seven years long but less than 17 years. Length of marriage in a medium-term marriage is again defined from the date of marriage until the date of filing.

Types of alimony available: bridge the gap, rehabilitative, duration, or any combination of the above.

Permanent alimony can be awarded only if the court finds “clear and convincing” evidence. For example, in one medium-term marriage the wife had health problems develop during the marriage and had been the homemaker caring for the kids as a stay-at-home housewife. The court found clear and convincing evidence after reviewing the facts that permanent alimony was appropriate.

I Have Been Married For More than Seventeen Years (“Long-Term Marriage”)

There is a rebuttable presumption that a long-term marriage is a marriage that lasted for seventeen years or longer. The length of the marriage is defined from the date of marriage until the date of filing.

All types of alimony are available in a long-term marriage, or any combination of the above.
Permanent alimony is awarded in long-term marriages if considered appropriate under the circumstances.

What if we was separated for years before filing for divorce? Does that affect the duration of the marriage when determining alimony?

The measurement of marital duration is a bright line test. However, evidence of a lengthy separation can be useful to rebut the presumption that a marriage is a short, medium, or long-term marriage.

What If I Don’t Have the Money to Pay Alimony?

Lucky for you, the primary factor in an Alimony case is the “Need and Ability to Pay” stay.

The Spouse requesting alimony must have a need for alimony.

The Spouse requested to pay alimony must have an ability to pay.

So, the first step is to figure out the need of the requesting spouse.

A need for financial support exists when the party’s expenses exceed his or her income.

Unfortunately figuring out income is not always easy, as the requesting spouse may be unemployed or underemployed.  It may be fair and equitable for the Court to impute a wage on the spouse asking for alimony.

Figuring out the expenses of the spouse asking for income is not clear cut either. Expenses listed on a financial affidavit me over inflated or not relevant to the needs and necessities of the spouse going forward.

The second step is to figure out the ability to pay of the other spouse.

The same ideas apply.  Is the spouse intentionally under employed or unemployed to try to eliminate his alimony responsibility?  Did the spouse over-inflate his expenses?

 She has a Need and I Have an Ability to Pay.  What Are the Factors The Court Looks At Next?

Once you have figure out the types of alimony that are appropriate and have gotten past the need and ability to pay test, you need to move on to the ten factors that the law says Judges must consider before awarding alimony.

While we have lamented that there is such a wide range of results, there are limits.  For example, the law says that the spouse getting alimony can’t be left with substantially more net income than the person paying alimony.  So those horror stories of the spouse paying 70 percent of his income to his spouse should not or are not happening.

So below are the factors the Judge goes through one by one in your case:

1. Standard of Living

The first factor listed by statute to consider is the standard of living of the parties established during the marriage. Or what have the parties become accustomed to during the marriage.

In high income or high asset cases, the attorney should hire a qualified expert to make a standard of living analysis. These are typically forensic accountants or economists. The attorney will gather all relevant financial documents, such as income records and bank and credit card statements for 3-5 years, and turn over the the accountant to render an opinion on the appropriate standard of living and to present testimony to the court.

However the Judge recognizes that the standard of living often goes down for both parties after a separation. . This is because there is now two houses to maintain, and in situations where there are children, additional help (like day care) may be needed so both parties can work.

2. Length of Marriage

The court must also consider the duration of the marriage in an alimony award. The less length of time the couples were married, the less likely alimony is awarded.

3. Age, Physical, and Emotional Condition of Each Party

The courts are required to analyze the age, physical and emotional condition of each party. For example,if you can’t work because of degenerative condition or disease, you might need more support if you are the requesting party, or might not be able to pay alimony if you are the traditional breadwinner.

The Court can only look at your conditions now. If things might change in the future, then you would have to come back to court at that time.

4. Financial Resources of Each Party( Assets and Debts)

Before awarding alimony, the court will divide assets and debts for the parties. If one or both of the parties is left with a large amount of assets, then the court is to consider that in its alimony award.

If there are no assets to divide, a court can consider that as well.

In general, there are two types of couples: savers and spenders. The savers spend less, so the alimony award will tend to be less (on the flip side, the savers tend to have substantially more assets to divide between the parties).

Conversely, the spenders tend to have less financial resources available, so alimony tends to be higher, all things being equal. The needy spouse will need the higher alimony, as she will not have as much in the way of assets distributed to her at the end of the day.

5. Earning Capacities, Educational, and Work Skills of Parties

The court will consider the educational, work skills, and earning capacities of both parties.

As previously discussed, this analysis is most appropriate for rehabilitative alimony requests.

6. Contributions to the Marriage

Contributions to the marriage is an important factor in every alimony case.

Either party in a divorce is entitled to a fair share of the fruits of their combined work, whether it is in the office, the factory, the fields, or the home.

Contributions can be financial, like working and providing income, or providing assets. Contributions are also in the form of child rearing or homemaking.

Either party in a divorce is entitled to a fair share of the fruits of their combined work, whether it is in the office, the factory, the fields, or the home.

7. Responsibilities to Children

Much like the contributions during the marriage, the court can consider the responsibilities to the children after the marriage in determining an alimony award.

For example, a wife who takes on a disproportionate share of the responsibilities due to a lopsided child custody plan may be more appropriate for a higher alimony award than a spouse who splits the responsibilities equally.

Also, a spouse who cares for a special needs child may need to spend more time with the child than normal and thus may have her earning possibilities reduced.

8. Tax Effect and Consequences of Alimony

In most cases, the alimony paid by one spouse is taxable to the receiving spouse. In other words, if the husband pays alimony to the wife, that amount is usually deducted from his income for tax purposes, and that amount is added to the wife’s income for tax purposes.

However, in some cases, the parties may wish to leave the alimony taxable to the paying spouse.

However, the tax treatment can have such a wild effect on the parties net income that the court must analyze the tax effects of the alimony award and see what the net incomes will be for the parties at the end of the day.

9. All Sources of Income

The court is required to consider all sources of income for both spouses, including salary, commissions, regular recurring bonuses, governmental benefits, and income from investments.

Gift income if regularly received should be included in a determination of the parties’ financial resources. However, the court should not consider future gift income, as it is speculative .

Imputed Income: In some circumstances a party may be voluntarily unemployed or underemployed. For example, a husband may request his employer cut his hours for the duration of the divorce proceedings so that he can argue he doesn’t have the ability to pay support to a needy wife.

In these circumstances, the attorney for the wife can argue that the husband is voluntarily underemployed, and ask the court to impute income on the husband. The burden of proof when trying to impute income is on the party making the request.

10. Equity and Justice

Divorce court is a court of “equity”. The courts can consider any other factor they might think is relevant.

Income Deduction and Methods to Pay Alimony Post Divorce: Alimony and Life Insurance

1. Temporary Alimony

During the divorce proceedings, but before the final award of alimony, the court has the ability to award temporary alimony.

During the divorce proceedings, but before the final award of alimony, the court has the ability to award temporary alimony. These temporary alimony awards are often done in quick hearings, and are usually enough to hold the parties over until a final resolution by the court.

The temporary alimony award is not dispositive of the final award. Often, a temp award is based on a need and ability to pay model without full attention by the attorneys to the relevant statutory factors above.

2. Modifying or Termination of Alimony

The court may need to modify or terminate alimony in certain circumstances. The court will do this if:

a. Substantial Change in Circumstances: The court may modify or terminate alimony if there is a substantial change in the need of one party to pay alimony, or the ability of a party to pay alimony.

For example, if the payor spouse retires, his or her ability to pay is likely drastically changed, necessitating a need to change the alimony downwards.

Likewise, a needy spouse may get a high paying, unexpected job that reduces or eliminates her need for alimony.

In these cases, the party wishing to change the alimony award will want to petition the court to modify the alimony payments.

b. Supportive Relationship: If a needy party enters into a support relationship with another individual, the court may terminate the alimony.

c. Alimony and Remarriage: In most cases, if the spouse remarries, the alimony termination is self-executing.

If I Lose My Job, Will I Still Need to Keep Paying Alimony?

]If you have lost your job, and are therefore involuntarily employed, you may have a case to stop your alimony until you are employed again. However, if you quit your job, meaning the inability to pay alimony is by your own choosing, you have less of a justification to stop paying your alimony.

Can I Get Rid of My Alimony Payments in Bankruptcy Court?

Alimony awards are not dischargeable in bankruptcy. The bankruptcy code explicitly exempts alimony payments from a discharge. However, if a spouse is going through a bankruptcy, there may be an inability to pay that would give way to a modification of his alimony payment. Be sure to talk to your Tampa divorce attorney about bankruptcy and alimony.

I Cheated On My Spouse.  Does That Mean I Am Going To Get Hammered With High Alimony?

Florida is a no-fault state. And, while the Florida statute does have language suggesting that adultery is a factor in alimony awards, the reality is that Florida courts do not consider adultery explicitly in alimony awards.

However, adultery can be relevant in two narrow circumstances. If you have wasted marital money on your paramour, it is relevant with the court. If you are requesting alimony, but you are cohabiting or being supported by your paramour, it is relevant to the court.

How Does Child Support Effect Alimony?

An alimony award is determined before an award of child support. The court decides alimony based upon the factors above, and then the court distributes the alimony to the recipient spouse. This in effect lessens the income of the payor spouse, and increases the income of the needy spouse.Then, the court takes these new income amounts, and uses them in the Florida child support guidelines.[/