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 ensure 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 the 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 long-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 ordered 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.