Alimony in Florida

1. ALIMONY: Should you get it?

Alimony (Spousal Support) is monetary support paid from one spouse to another. The Court can order one party to pay the other support while a case is pending and/or after entry of the final judgment of dissolution of marriage. There are a series of factors the Courts use to determine how much alimony and for how long it should be paid…but it is not a calculation like child support is.

Usually the woman wants the man to provide support and to keep her in the manner that she has become accustomed during the marriage. Of course, the law no longer discriminates. A man is entitled to support as much as a woman. Still, he must prove his need and her ability to pay. As a result of social norms, it’s not common to find men in the position where they should be the recipient of alimony, however we do see it and have gotten it for male clients before.

In order for either party to receive an award of spousal support, the party seeking support must present admissible evidence to the judge establishing they have the need and the other party has the ability to pay. If the judge determines that the party seeking support has no need, then there should be no award, no matter how great other party’s ability to pay is. You can be earning $1 million/year; if your spouse can’t establish a bona fide need for support, you will not be ordered to pay support. The flip side of the equation is that both parties have the need and neither has the ability to pay. In that situation, the court should not award alimony. No matter how much one party can establish their need to be, if the other party is without the ability to pay spousal support it would be improper for the court to award it.
Simple concepts, right? Not so much. Wife’s need should include her own ability to pay for those needs. Is she working to full potential? Is she unemployed? Underemployed? Sitting on her hands hoping husband has to pick up the tab? Same with husband. If wife has a well established and reasonable need, can husband cry poverty when he is not working, or not working to his full potential? The law allows a court to impute income to one or both parties. That is, to attribute phantom income if admissible evidence is presented and accepted by the court as truthful to the unemployed or underemployed spouse before determining his or her need or ability to pay support.
So, if wife claims she needs for $5000 per month and husband can prove at trial, with admissible evidence, that wife can easily earn $5000 per month if she got off the couch and worked, and the judge accepted this as truth, the court would impute $5000 of monthly income to wife as if she was working, even though she is not, and no matter if husband has the ability to pay the full $5000 to her each month, or more, the court should award wife no alimony. Consider the possibilities. Need must be tempered by the wife’s ability to support herself. Husband’s ability to pay must also factor his true earning potential, if wife chooses to make that an issue at trial. A husband cannot sit on his hands and say, “Oh well, no job, no money, no alimony!”. Nope, a judge can also impute income to him and make an appropriate award to wife based on that “ability to pay”, some or all of which is phantom income.

2. Alimony: How much? For how long?

If the trial judge determines either no need or no ability to pay, then the issue should be closed.
If, on the other hand, the judge decides wife has a bona fide and reasonable need and husband has the ability to pay, then the court must consider all relevant factors.

Most people think alimony is always paid monthly and forever. This type of alimony is called permanent alimony and is not as common as people think. It’s what the woman wants and what the husband fears most.
Interesting thing about alimony is that it is left to the sound discretion of the trial judge. So if a judge determines (1) alimony should be paid, (2) permanent alimony is appropriate, (3) the wife needs $5000 each month, and (4) husband has the ability to pay that amount, then the judge may actually award $5000 permanent alimony to wife and husband will have to pay it until he dies or until the court modifies the award. Permanent alimony can be great for wife and not so great for husband.

What the trial judge ultimately does, how he or she rules, must be based on admissible evidence presented at trial and based on the existing law and the convincing argument of counsel. If the judge exercises discretion within the boundaries of the law, the likelihood of reversing that judgment is slim. Be prepared. Make sure you have made the appropriate claim in your pleadings and have sufficient admissible evidence to prove your claim or defense. You have one chance at trial; be prepared.

Make sure your lawyer knows how to litigate and handle evidentiary hearings. That means knowing the rules of procedure, the rules of evidence and having experience before many different judges. Trial is a specialty. Knowing how to prove facts or to defend a claim is critical. Talking a good game won’t cut it. Actual trial experience cannot be understated and sadly, most family lawyers do not have actual trial experience. They may know the law up one side and down the other, but unless they know how to present a case, to examine or cross examine a witness, to authenticate a critical document, to gather and usher evidence and facts so the judge understands the case, it makes no difference. That lawyer will not get the best outcome for his or her client.

In addition to permanent, there are other types of alimony such as bridge the gap, rehabilitative, or durational. Alimony can also be awarded in a nominal amount, such as $1 per year. While this may seem insignificant, it keeps the door open so the wife can come back to modify alimony upward if husband’s situation improves. If the court does not award wife support, then there is none to modify…regardless of how much money husband comes into after the divorce. In other words, the law does not allow for a modification of alimony if it wasn’t awarded in the final judgment of dissolution of marriage.

Ultimately, if the wife establishes her need and the husband’s ability to pay, the amount of support may not leave the husband with significantly less net income than the net income of the wife unless there are written findings of exceptional circumstances. Exceptional circumstances can be fodder for trial lawyers to explore and attempt to prove.

We have considerable trial experience. We have tried all sorts of cases through the years, including over 100 jury trials to verdict. We know our way around the courthouse and courtrooms of Florida. There is no substitute for careful preparation, knowledge of the law and experience. If you have a contested case where alimony is an issue, let Miller Law Associates help you.

Relevant Factors

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In determining the proper type and amount of alimony, the court shall consider all relevant factors, including, but not limited to:

(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.

Permanent Alimony

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Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. Permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of these factors a marriage of moderate duration if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set forth in subsection (2), or following a marriage of short duration if there are written findings of exceptional circumstances. In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship in accordance with s.61.14.

Bridge The Gap Alimony

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Bridge-the-gap alimony may be awarded to assist a party by providing support to allow the party to make a transition from being married to being single. Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short-term needs, and the length of an award may not exceed 2 years. An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award of bridge-the-gap alimony shall not be modifiable in amount or duration.

Rehabilitative Alimony

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Rehabilitative alimony may be awarded to assist a party in establishing the capacity for self-support through either:

1. The redevelopment of previous skills or credentials; or

2. The acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.

(b) In order to award rehabilitative alimony, there must be a specific and defined rehabilitative plan which shall be included as a part of any order awarding rehabilitative alimony.

(c) An award of rehabilitative alimony may be modified or terminated in accordance with s.61.14 based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan.

Durational Alimony

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Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis. An award of durational alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances in accordance with s. 61.14. However, the length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.

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