Alimony in Florida
1. ENTITLEMENT TO AN AWARD OF ALIMONY
Alimony – money paid by one spouse to the other, typically either while the divorce case is proceeding or after entry of the final judgment of dissolution of marriage, or both, oftentimes is a hotly contested divorce issue. Why not? Money is involved. 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, so a man is entitled to support as much as a woman is if he can prove his need for alimony and her ability to pay alimony. It’s not too often that men actually win an alimony award, however.
In order for the wife to win an award of alimony from the husband she must present admissible evidence to the divorce judge who must make a specific factual finding that she has the need for alimony and that husband has the ability to pay her alimony. If the judge determines that wife has no need, then there should be no award of alimony, no matter how great husband’s ability to pay is. He can be earning $1 million/year and be required to pay no alimony if wife cannot prove her actual and reasonable need and the judge decides to accept her proof as truth. The flip side of the equation is that wife proves a great need but cannot prove that husband has the ability to pay. In that situation, the court should award no alimony to wife. No matter her well established need, if husband is without the ability to pay alimony 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 in the alimony analysis. 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 alimony.
So, if wife claims a need for $5000 per month in alimony 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 as alimony, 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 alimony award to wife based on that “ability to pay”, some or all of which is phantom income.
2. HOW MUCH ALIMONY, WHAT TYPE OF ALIMONY AND FOR HOW LONG?
If the trial judge determines either no need or no ability to pay, then the issue of alimony 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 alimony, then the court must consider all relevant factors.
Women come into the office looking for alimony to be paid monthly and forever. This type of alimony is called permanent alimony or permanent periodic alimony. 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. What that means is that if the judge determines after hearing and careful consideration of the admissible evidence presented at trial that alimony should be paid and that permanent alimony is appropriate and, further, that wife needs $5000 each month and husband has the ability to pay, 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 alimony 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 awarding alimony 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 so put your best case on at that trial, either in favor of a claim for alimony or in defense of the alimony claim.
Make sure your lawyer has experience in trial and trying cases. That means knowing the rules of procedure, the rules of evidence and having experience trying cases. Trial is a specialty. Knowing how to prove entitlement to alimony or to defend an alimony 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 on alimony 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.
Wife wants permanent alimony. That’s a given. There are other types of alimony such as bridge the gap alimony, rehabilitative alimony, durational alimony or lump sum alimony. There is also something called nominal alimony. Nominal alimony can be $1 or some other nominal amount paid monthly or annually, i.e. “The court awards wife $100 permanent alimony”, is a vehicle for the court to keep the alimony issue alive for wife to be revisited sometime in the future. If the court awards no alimony to wife in the final judgment of dissolution of marriage, then if circumstances change in the future, i.e. husband comes into great wealth and can then afford to pay alimony to wife based on her need established during the marriage, the court can modify that $100 nominal award to a greater sum. Unless the court awarded even a nominal amount there would be no ability for the court to modify the award. In other words, the law does not allow for a modification of alimony if there was no award of alimony in the final judgment of dissolution of marriage.
Ultimately and even if wife establishes her need for alimony and husband’s ability to pay alimony, any alimony award 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.
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(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.
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Bridge The Gap Alimony
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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.
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