Most clients accept that they will have to split their joint assets in a divorce. But, four issues really seem to strike a nerve in men. Military divorce clients typically find it very hard to accept that their spouse is going to leave them and take half of the marital portion of the military retirement. Many fathers cannot understand why mothers still have an upper hand in custody disputes. And, no one wants to pay their spouse's legal fees. But, the most controversial part of many divorces is the issue of alimony.
Parties seeking alimony feel that they are entitled to maintain the standard of living achieved during the marriage. Ironically, in many cases, the standard of living led to the downfall of the marriage in the first place. And, unfortunately, for most couples, it is impossible to maintain two households at the same standard previously achieved in one. Further, many people have financed their lifestyle by accumulating debt or failing to save. As couples age, their need for savings becomes more important. Alimony typically destroys both parties’ ability to save for retirement.
Many clients argue that the party seeking alimony would not need it (or at least not nearly as much of it) if they would just go back to work. And, where a non-working mother is seeking alimony, it seems that judges are quick to assume that the parties agreed for the wife to stay home with the children. Even if the husband agreed for her to stop working, the agreement was rarely meant to be “permanent.” Some women choose – against their husband’s wishes – to stay home much longer than their partner ever anticipated. These women feel it is “necessary” for them to stay home, even after the child has started school.
When the parties cannot agree on how much alimony is appropriate or how the requesting party should receive alimony, the court will have to award alimony pursuant to the standards set forth in section 61.08, Florida Statutes.
Types of Florida Alimony
In a divorce case, the court may grant bridge-the-gap alimony, rehabilitative alimony, durational alimony, permanent alimony, or any combination of these forms of alimony. In any award of alimony, the court may order periodic payments or payments in lump sum or both. See Fla. Stat. § 61.08.
Bridge-the-gap alimony is an award of alimony for a set duration of time to assist the party in need with the transition from married life to single life. This alimony is not subject to modification and may be awarded for up to 2 years.
Rehabilitative alimony is intended to assist a party in achieving the means necessary to support herself after the marriage. The party seeking rehabilitative alimony must propose a “plan” to the court outlining what she intends to do to increase her earning capability, how the training will help her financially, how long the training will take, and how much the training will cost. Rehabilitative alimony may be modified or terminated if the wife does not attend the courses as proposed in the rehabilitative plan.
Durational alimony was created by the Florida legislature in 2010. The purpose of durational alimony is to provide periodic support to a spouse for a number of years, not to exceed the duration of the marriage, which is measure from the date or marriage to the date of filing for divorce. The amount of alimony awarded each month is subject to modification if one of the parties experiences a substantial change of circumstances, including an unanticipated change in need or ability to pay, death of either party, or remarriage of the payee. The duration of the alimony award is not subject to modification, except in exceptional circumstances.
Permanent Periodic Alimony
Permanent period alimony is an award of alimony, typically on a monthly basis, that continues indefinitely. Permanent alimony terminates on the death of either party or upon the remarriage of the recipient. Permanent alimony is also subject to modification if the recipient spouse is in a supportive relationship. Some parties may be eligible to terminate their alimony obligation upon retirement if there are not sufficient income-producing assets for the retiree to continue paying the alimony.
Lump Sum Alimony
Lump sum alimony is awarded where it is appropriate for the court to award a fixed sum of alimony to one spouse. This may be appropriate where one party divests himself of the ability to earn income and pay alimony. It may also be appropriate where one party is ordered to pay off certain marital debts. Lump sum alimony may be payed in installments but it may not be terminated, even upon death or remarriage.
Florida Alimony Factors
In determining whether to award alimony, section 61.08, Florida Statutes, requires that the court must first make a specific factual determination as to whether either party has an actual need for alimony and whether the other party has the ability to pay alimony.
If the court finds that one party has a need for alimony and that the other party has the ability to pay alimony, then in determining the proper type and amount of alimony, the court must consider all relevant factors, including but not limited to the following:
- The standard of living established during the marriage.
- The duration of the marriage.
- The age and the physical and emotional condition of each party.
- The financial resources of each party, including the non-marital and the marital assets and liabilities distributed to each.
- The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
- The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
- The responsibilities each party will have with regard to any minor children they have in common.
- The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
- All sources of income available to either party, including income available to either party through investments of any asset held by that party.
- Any other factor necessary to do equity and justice between the parties.
Florida Alimony Reform
In 2013, the Florida Legislature passed significant alimony reform laws. To the shock of many, including those for and against alimony reform, Governor Rick Scott vetoed the legislation. A letter from Governor Scott made clear that he believed the alimony reform legislation was anti-family, especially certain provisions that would allow courts to modify prior alimony awards.
With 2014 being an election year, the Governor has also made clear that he does not want to reconsider the controversial bill, which could potentially alienate roughly half of Florida voters. But, we have not seen the last of Florida’s alimony reform movement. Look for proponents of alimony reform to return next year, especially if Governor Scott wins re-election.
The 2013 alimony reform legislation would have changed how the courts classify short-term, moderate-term, and long-term marriages. The current alimony statute defines a marriage of less than 7 years as short-term, a marriage of 7 to 17 years as moderate-term, and a marriage lasting 17 years or more as long-term. There is currently a presumption in favor of awarding permanent alimony after long-term marriages, and there is a presumption against permanent alimony after short-term marriages.
The 2013 alimony reform bill also would have changed the marriage classifications as follows: (a) any marriage lasting less than 11 years would be a short-term marriage, (b) any marriage lasting between 11 and 20 years would be a moderate-term marriage, and (c) only those marriage lasting more than 21 years would be considered long-term. Significantly, the proposed 2013 legislation would have created a presumption against awarding alimony in short-term marriages. And, while the bill maintained a presumption in favor of alimony in long-term marriages, it would have eliminated the concept of permanent periodic alimony.
The 2013 proposed alimony reform also placed significant limits on awards of durational alimony. Specifically, under current law, durational alimony may be awarded for as many years as the parties were married. The 2013 alimony reform bill would have presumptively capped durational alimony at half the duration of the marriage. In other words, a party that was married 14 years could receive alimony for no more than 7 years. Courts only would have had discretion to exceed this cap in cases where the need is justified by exceptional circumstances.
Under existing alimony law, there are no statutory limits on the amount of alimony that may be awarded, except that the alimony award cannot exceed 50% of the payor's gross income and cannot result in the recipient have significantly more income than the payor. The 2013 alimony reform would have imposed lower caps on the amount of alimony that could be awarded. Alimony would have been capped at the following percentages: (a) 25% of the payor's gross income for short-term marriages; (b) 35% of the payor's gross income for moderate-term marriages; and (c) 38% of the payor's gross income in long-term marriages.
There is no guarantee that the same framework will be included in future attempts at alimony reform. The 2013 alimony reform bill was strongly supported in the legislature. But, the bill was most likely vetoed due to the controversial provisions that allowed courts to modify past alimony awards.
If you have questions about alimony, cohabitation, termination of alimony, or alimony modifications, please contact an experienced Florida family law attorney.