Alimony Basics and the New Statute
One of the first questions divorce lawyers are usually asked by new clients is “how much alimony will I get,” or conversely, “how much alimony am I going to have to pay.” The spouse seeking alimony often assumes it is a foregone conclusion that he or she will receive years of support from their soon-to-be ex. However, alimony is not awarded in every divorce case and is by no means guaranteed.
Before addressing the question “how much,” Florida law requires the Judge to determine that the person seeking alimony has an “actual need” for financial support and whether the other spouse has the ability to pay alimony. After the Judge finds there is both need on the part of one spouse, and ability to pay by the other spouse, he or she then considers a long list of factors to determine the type and amount of alimony that is appropriate under the circumstances. The factors include:
(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.
(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
(i) All sources of income available to either party.
(j) Any other factor necessary to do equity and justice between the parties.
Florida Statute 61.08 identifies four different types of alimony that a court may award. Permanent alimony, which is what most people think of when they hear the word alimony, is intended to provide for the “needs and necessities of life,” as they were established during the marriage, for a party who lacks the financial ability to meet his or her own needs following a divorce. It is generally awarded only in long term marriages (17 years or more), but it may also be awarded in moderate term marriage, also known as a “gray area” marriages, (greater than 7 years, and less than 17 years) if it is appropriate based on consideration of the factors discussed above. Under exceptional circumstances, such as if a spouse is permanently disabled, he or she may be awarded permanent alimony in a short term marriage (less than 7 years), but that is very rare. Permanent alimony terminates upon death of either party or remarriage of the recipient. It can also be terminated or modified if the recipient remains unmarried but is in a relationship and being supported financially by his or her new partner, which is known as a “supportive relationship” under Florida law.
As of July 1, 2010 the alimony statute was changed to include a new type of alimony called durational alimony, which may be awarded when permanent alimony is inappropriate. The purpose is to provide a spouse with economic assistance for a set period of time following a moderate or short term marriage. Unlike with permanent alimony, the length of an award of durational alimony cannot exceed the length of the marriage itself. Durational alimony terminates upon the death of either party or upon remarriage, and while the amount may be modified by the Court if there is a substantial change in the circumstances of the parties, the duration of the payments may not be modified except under “exceptional circumstances.”
Two other types of alimony may also be awarded. Bridge-the-gap alimony, as its name implies, is intended to assist a spouse in making the transition from being married to being single and the associated costs. The law was recently amended to specify that bridge-the-gap alimony can last no more than two years. Once awarded, it cannot be modified by the Court.
Rehabilitative alimony is intended to assist one spouse in establishing the capacity of self-support through training, education or work experience to develop, or redevelop the skills and credentials needed to find employment. It may be ordered in a marriage of any length, although is less likely in a long term marriage where a spouse with the need for support is usually untitled to permanent alimony. The recipient is required to have a specific and defined rehabilitative plan that he or she must follow in order to continue receiving the payments. This type of alimony usually lasts only a short period of time and terminates upon completion of, or noncompliance with the rehabilitative plan. The Court can modify the amount or duration may be modified by the Court if there is a substantial change in circumstances.
What does it all really mean? If you have been married for seventeen years or more, one spouse has primarily stayed home to raise children, care for the house, or support the career of the primary earner, expect to receive, or pay, permanent alimony. If you have been married less than 7 years, even if one spouse has been out of the work force for almost the entire marriage, alimony will likely last only a few years, if it is awarded at all. And remember, once you are getting divorced, all bets are off. The fact that you and your spouse agreed that one of you would stay home and raise the kids, while the other worked is no longer relevant. You also agreed to be married forever. Once that deal is off, so are the rest of them.
Jodi Furr Colton is a Boca Raton attorney with the law firm of Brinkley Morgan. She focuses her practice on divorce, alimony, equitable distribution, parental responsibility and timesharing. She can be reached at 561-241-3113.