| Alimony and Spousal Support |
In Florida, alimony is a form of spousal support which can be ordered by the court during the dissolution proceedings and/or after the divorce is final. Alimony encompasses several different types, each of which has a somewhat distinct purpose. Temporary alimony is support paid while the dissolution of marriage action is pending. Rehabilitative alimony is paid for a limited period of time to assist a spouse in training, education or adjustment in re-entering the workforce. Rehabilitative alimony is typically paid anywhere from one year to several years after the divorce is final. Its purpose is to assist one spouse in getting education or training to re-enter the workforce. Similarly, bridge-the-gap alimony is intended to help one spouse get back on their feet. This type of alimony is limited and shall not exceed two years. Permanent alimony is paid to one spouse for the rest of their life or until certain events (such as death or re-marriage) occur. Usually the payment of permanent alimony is ordered in longer term marriages although length of marriage is not always determinative. Durational alimony is newly established and is used in instances where permanent alimony is not appropriate and where rehabilitative alimony is either inadequate or not applicable. Lump sum alimony is ordered somewhat less often. With lump sum alimony, one spouse pays the other a flat amount, usually as a means of equalizing asset distribution.
Before determining what type of alimony to award and in what amount, the court must first determine whether alimony should be awarded at all. Alimony, unlike child support, is not determined or calculated by use of a formula. Instead, the court has discretion in determining whether alimony should be awarded, and if so, in what amount and over what period of time. In determining an alimony claim, the first issue to be determined by the court is whether one spouse has a need for support; the next issue is whether the other spouse has the ability to pay such support. If the court finds that one spouse has a need for alimony and that the other spouse has the ability to pay the alimony, then the court may go on to consider the factors listed below:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
(e) 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.
(f) 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.
(g) The responsibilities each party will have with regard to any minor children they have in common.
(h) 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.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties.
The court can consider all of these factors together or in any combination. In addition, not all of the factors have to be established in order for alimony to be awarded and no one factor is considered more important than others. Instead, the court generally considers each factor and assesses its application and weight in a particular case. It should be noted that for each factor, there are significant court interpretations and rulings that apply; as such, in analyzing a particular case, the attorney handling the matter will need to find rulings that are applicable to a specific case. For example, on the “standard of living established during the marriage,” there are numerous cases interpreting what this means. As a result, one cannot simply read paragraph (a) on its face but instead must do so in the context of similar cases construing this provision.
Among the issues considered for assessing alimony, the length of marriage is certainly to be considered. Florida courts have long considered that the type of alimony awarded could be influenced by the length of marriage. For example, except in unusual circumstances, permanent alimony likely would not be awarded in a “short-term” marriage but likely would be in a “long-term” marriage. Until recently, what constituted a short-term or a long-term marriage was not clearly defined. Florida Statutes Section 61.08 (4) now specifies that marriages of less than seven years are considered short-term and marriages of 17 years or greater are considered long-term. In between, the marriage is considered a moderate-term or “gray area” marriage.
The discussion set forth above is general in nature and the analysis of whether alimony is applicable in a particular case requires careful consideration by an attorney experienced in such matters. In most cases, parties facing alimony claims should not try to represent themselves in the divorce process. To do so could run the risk of having the court impose a substantial obligation on them when proper preparation, analysis and argument could avoid or minimize the risk.
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(c) Copyright 2008 Michael Lins, Attorney
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