2013 Florida Alimony Reform Updates:
Governor Rick Scott vetoed a bill that would have ended permanent alimony in Florida. Scott vetoed the bill (SB 718) on Wednesday, May 1st — just four hours before the midnight deadline to approve or veto the bill. The bill automatically would have become law if Scott had done nothing by then. Florida also would have set limits on the amount of alimony and how long one would receive financial support from an ex-spouse. The bill would have made it harder to get alimony in short-term marriages. And it would have prevented alimony payments from lasting longer than one-half of the length of the marriage. The bill also would have required judges to give divorced parents equal custody of their children absent extraordinary circumstances. The governor said he vetoed the bill because it would have applied retroactively to anyone who had been through a divorce in Florida. “The retroactive adjustment of alimony could result in unfair, unanticipated results. Current Florida law already provides for the adjustment of alimony under the proper circumstances. The law also ensures that spouses who have sacrificed their careers to raise a family do not suffer financial catastrophe upon divorce, and that the lower earning spouse and stay-at-home parent will not be financially punished,” said Gov. Scott. If you have questions regarding alimony, divorce or child timesharing (custody) please contact the Men’s Divorce Law Firm today. Attorney Jeffrey Feulner is an experienced advocate for the male point of view in all family law matters.
The downturn in the U.S. economy has touched the lives of most of our clients and the prospective clients we consult with every day. Even as we look forward to a turnaround, the implications will continue to affect our families in ways that we could not have contemplated in the years leading up to today. Once the decision is made by a Husband or Wife to dissolve their marriage, the family finances, a subject that is often already contentious, become a primary concern for everyone involved. Alimony comes to mind quickly for both the potential payor and the potential recipient. Who is entitled to alimony? How much will be paid and for how long? Who decides and what information is considered? Any consideration of alimony begins with an analysis of “need” and “ability to pay.” We educate our clients from the time that they initially meet with our firm as to the importance of accurately and timely providing the necessary documents and information we need to provide counsel to them in this area. No one receives an award of alimony absent a demonstrated need, no matter the income of the other party. Likewise, there is often need on the part of one spouse for additional income to cover monthly expenses, but no ability to pay on the part of the other spouse. Both elements must be met before an award is made. Additionally, it is not the parties who determine their need, or their ability to pay, but rather the law that defines the critical elements of need, income, ability, duration, etc. The application of the law of alimony begins with a Florida Statute. The facts of an individual case are applied to each of these economic factors:
- 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, the non-marital and the marital assets and liabilities distributed to each.
- 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.
- All sources of income available to either party.
- The court may consider any other factor necessary to do equity and justice between the parties.
Case law is then applied to further define the meaning and intent of each of the factors, specifically, how the court has previously ruled on a given set of facts and circumstances. For Example:
- Duration of the marriage. There is no bright line rule as to how long a marriage must be before a court will award alimony. There is a legal “presumption” in favor of permanent alimony following a long-term marriage. Long-term is not clearly defined, but is more often than not, in excess of fifteen years. This factor alone is not determinative, and long-term marriage does not insure permanent alimony or any alimony at all. The economic factors must be considered as a whole.
- Income available to the parties. Note the law does not state, the parties actual income. Income can be imputed, or attributed, to a spouse based on prior earnings, potential earning, continuous gifts from third parties or family members, or any variety of sources. Imputation of income plays a significant role in both the need and ability to pay analyses.
There are five different types of alimony: (1) Permanent periodic, including Nominal; (2) Rehabilitative; (3) Bridge-the-Gap; (4) Lump sum, and; (5) Temporary. The court can award one of these types of alimony or any combination of all of them. Each type of alimony has a general purpose, most easily distinguished by time/duration;
- Permanent periodic. Typically awarded in the form of continuous monthly payments until death of one of the parties or remarriage of the recipient spouse. Nominal alimony is an award made when there is a demonstrated need and disparity of income, but no current ability to pay. In essence, the award is made with the knowledge that the amount will be modified in the future.
- Rehabilitative. This award can be made when the recipient spouse provides the court with a rehabilitative plan. The purpose of a rehabilitative award is to elevate the earning potential of the recipient spouse to one of self-sufficiency thus eliminating the need for longer term support. Rehabilitative plans generally focus on education and/or job training for the recipient spouse and are limited in time and funding, though may be modifiable.
- Bridge-the-Gap. Appropriately names, this type of alimony is used to aid in the transition from married life to single life and is meant to provide relief to the recipient spouse for short term financial pressures. This type of alimony is found in short-term marriages and is limited in duration accordingly.
- Lump sum. Awards of lump sum alimony are made when the court makes a finding that they are necessary for support, or for use as an equalizing payment, and that there are circumstances that require that the support be non-modifiable. Lump sum alimony can often be found in the awarding of the marital residence to one party.
- Temporary. Alimony that is awarded pending litigation. The court may award temporary alimony after the initial petition is filed based on the parties’ current standard of living and current ability to pay. Temporary alimony may be deemed appropriate by the court even in cases where the final judgment denies alimony.
Very Frequently Asked Alimony Questions:
1. I was order to pay alimony after my divorce several years ago and I recently lost my job. Can I quit paying?
Unemployment rates have reached all-time highs. We, and the court, understand that these things are happening more and more. While ultimately you may be entitled to relief from your obligation, do not use self-help methods. A Petition for Modification must be filed with the court. Relief may be granted retroactively to the time of legally seeking relief, but the obligation continues until a court order is entered.
2. My ex-Wife has been living with her new boyfriend for two years and told our kids that she won’t get married because then I won’t have to pay her any more alimony. A friend of mine told me that I don’t have to keep paying because she is cohabitating. Is that true?
- Cohabitation is a consideration for modification of alimony in some circumstances, but not all. Any time that a party seeks to modify a prior agreement, that agreement must be thoroughly reviewed first. It may very well be that the original alimony award was non-modifiable, meaning exactly that. Further, while there is a statutory law that provides relief where warranted in cases of cohabitation, it is the burden of the paying spouse to prove by a preponderance of the evidence that the recipient spouse is in a legally supportive relationship. Just as in the determination of the original alimony award, several factors must be considered, and the facts of each case uniquely applied.
3. My Wife had an affair during our twenty-five year marriage so I won’t have to pay her alimony at all, right?
Marital misconduct adds an emotional element to a situation already wrought with grief and despair. The law states that the court may consider adultery of a spouse when determining the amount of alimony to be awarded. This does not mean that an award will not be entered. The court may consider the circumstances surrounding extra-marital affairs, and especially any dissipation of marital assets that occurred as a result of the relationship. As in all cases involving alimony, the facts of the case will be applied to the statutory facts and a need and ability pay analysis will be conducted.
4. I am about to get married and my fiancé and I agree that neither one of us will ask for alimony in the event we decide to divorce. Will a prenuptial agreement protect us?
Prenuptial agreements can be effectively used to accomplish this goal. There are certain requirements that must be met to make prenuptial agreements valid contracts so the best course of action at this point is to have a qualified attorney draft the agreement for you.
2011 Florida Alimony Law:
A new Florida Alimony Statute was made effective as of July 1, 2011. The new alimony law did not radically change alimony rights in Florida. The new law mostly clarified and defined prior new laws:
- If a court awards permanent alimony in a short-term marriage (a marriage under 7 years long), there must be documented exceptional circumstances.
- An award of permanent alimony for a moderate-term marriage (between 7 and 17 years) must be supported by “clear and convincing evidence.”
- Before a judge awards permanent alimony, there must be a stated justification that no other form of alimony (short term alimony) would be fair and reasonable.
- An award of alimony must not leave the person paying the alimony with significantly less income than the person receiving the alimony – unless there are exceptional circumstances.
Exceptional circumstances: Facts that go far beyond a normal, everyday situation. But remember, the everyday situations in many divorce cases are already pretty extreme. For example, a spouse that becomes completely disabled during the marriage from an accident or disease may qualify as an exceptional circumstance. Or if the other spouse does something wrong or vengeful that permanently damages the other spouse’s career; that may qualify as an exceptional circumstance. Anything like the examples mentioned may be adequate reasons for a court to give a spouse permanent alimony after a short-term marriage. But remember, the shorter the marriage, the more extreme the facts must be. A two year long marriage would not qualify for permanent alimony unless something absolutely horrible happened during that prior two years.
Clear and Convincing Evidence: Fact must be really obvious and clear to meet this standard that is now required for permanent alimony in a medium length marriage (between 7 and 17 years). Normal divorce court decisions must be supported by the “more likely than not” standard for evidence and faces. But the new alimony statute requires evidence at the level of “no-brainer.” In other words, the court must see evidence that almost speaks for itself.
Significantly Less Income: No one knows what that phrase means. But you can be sure it will be fought out in every family law court in Florida. The new 2011 alimony law for Florida applies to all new orders signed by the courts after July 1, 2011. It also applies to any alimony judgments modified after July 1, 2011. Also included are any pending cases as of that date. One interesting thing to note: you cannot modify an old alimony award if nothing else has changed other than the alimony statute.
Comments on the new 2011 Florida Alimony Law:
A principle that may alimony attorneys are aware of is that a judge will usually decide what they want to do, and then figure out how to support that decision with legally supportable reasoning. If a judge needs “exceptional circumstances,” all they have to do is look in the facts of the case and pick anything that reasonably qualifies. So the new alimony law will have minimal immediate effect on family law trial court decisions. Over time, appellate courts will reverse some trial court decisions that do not conform to the new law. That will eventually have the effect of guiding trial court judges on how to apply the new alimony statute. Like all new laws, it takes years for the effect to be seen in ongoing cases. So the moral of the story: do not look for immediate, radical changes in the outcome of cases. Make sure your attorney knows the new alimony law and plans to use it to your advantage.