Alimony is one of the least understood and most difficult areas of family law. Why? There is no set formula to determine alimony, but rather a set of factors to guide family law judges to determine whether or not it is appropriate, and if it is appropriate the amount and length of the award. Florida empowers its family law judges with broad judicial discretion in making alimony awards which can result in varying awards.
While almost all of the judges I practice before are diligent, conscientious human beings and lawyers/judges, their awards vary because each judge has a different point of view and background. Many Florida citizens, particularly lawyers, believe broad discretion is a good thing because it allows judges to customize (within the parameters of the law) an alimony award based on the unique set of circumstances in each case. A significant portion of Floridians take a contrary viewpoint, stating that wide discretion can lead to unreasonable and unfair awards. In my opinion, both sides are correct. Since I represent both alimony payors and payees in my practice, I see both perspectives. As a lawyer, I do not pretend to have all of the answers about a debate best reserved for the legislative process, but I will provide some insights about how a lawyer can help when you are seeking alimony or it is being sought from you under current law.
Lawyers do not make decisions about alimony awards, but a knowledgeable family law attorney can assist a client in presenting his or her best case, and possibly influence the court’s decision through the presentation of the right kind of evidence and experts – particularly at the margins of the case. No lawyer can ethically guarantee an outcome, but through diligence and knowledge, a family lawyer may enhance a client’s outcome.
The first and most important factor family law judges consider when issuing an alimony award is need and ability to pay. To award alimony, the court must find that the payor can afford to pay and the payee has a need. Ground zero for need and ability to pay analysis is the parties’ financial affidavits.
Financial Affidavit & Alimony
In almost all family law cases, Florida requires the filing of a financial affidavit within forty-five (45) days of the service of the divorce petition. The financial affidavit contains a ledger of a party’s monthly expenses. To prepare for an alimony case, it is imperative to analyze the stated monthly expenses of both parties. It is very common for a party to overstate their monthly expenses in an attempt to enhance their chances of receiving a sizable alimony award or to reduce their ability to pay.
To properly analyze a party’s need or ability to pay in preparation for a hearing, I will issue a request to produce to obtain the party’s last three years of bank and credit card statements. After reviewing the statements, I construct summaries of the statements to develop a picture of the party’s true expenses. The summaries appear on spreadsheets which mirror the party’s financial affidavit.
Florida’s evidence code allows the use of summaries to streamline the presentation of voluminous evidence. In high net worth cases, a certified public accountant (“CPA”) may also be employed to present a needs analysis and present an opinion to the judge.
The credibility of a party who has overstated expenses is undermined in court, when through careful preparation, we are able to show the court using summaries or experts that an opposing party’s actual monthly expenses are significantly lower (sometimes by thousands of dollars) than stated in their financial affidavit. This is one way a prepared lawyer can enhance a client’s outcome.
Income and Alimony
After the analysis of expenses, the next step when analyzing need is to determine the income of the parties. Analysis of income can be complex if a party is underemployed or self-employed.
The most common underemployed party is a stay-at-home spouse. If that spouse is not disabled or caring for small children, it is often necessary to perform a vocational evaluation to determine the party’s earning potential. Florida law allows judges to impute (or attribute) income to an underemployed spouse. To effectively make an imputation of income case, the use of an expert is critical to provide the Court with evidence to make findings about what level of income is appropriate to impute.
Self-employed individuals present significant challenges in an alimony case because they can often influence their level of income through the operation of the business. In a case with a self-employed party who may be underreporting income, it is best use a CPA to analyze the cash flow of the business.
Other Alimony Factors
In addition to need and ability to pay, Florida Statute Section 61.08 law sets forth the following factors for courts to consider when crafting an award:
- (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.
An entire page could be written about each of the additional factors. If you have questions about how the factors above apply to your case, please use the consultation request button on this page to schedule a free consultation.
Types of Alimony in Florida
1) Temporary Alimony
Temporary is designed to provide for the needs of a party while a dissolution of marriage is pending. Temporary alimony terminates upon the entry of the final judgment unless an appeal of the final judge is pending
2) Bridge-The-Gap Alimony
Bridge-the-gap alimony may be awarded to assist a spouse by providing support to facilitate the transition from being married to being single. Bridge-the-gap alimony is for short-term needs, and the length is not to exceed a period of two 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.
3) Rehabilitative Alimony
Rehabilitative alimony may be awarded to assist a spouse in establishing the capacity for self-support. Rehabilitative alimony must be accompanied by a specific plan. Rehabilitation may include:
- a. The redevelopment of previous skills or credentials; or
- b. The acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.
Rehabilitative alimony may be terminated for non-compliance with a rehabilitation plan.
4) Durational Alimony
A court may award durational alimony to provide a spouse 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.
5) Permanent Alimony
Permanent alimony may be awarded to provide for the needs and necessities of life established during the marriage if a spouse lacks the financial ability to meet his or her needs and necessities of life following dissolution of marriage.
In awarding permanent alimony, the court shall include a finding that no other form is fair and reasonable under the circumstances of the parties. Typically, permanent alimony is awarded after a long term marriage when no other forms are appropriate.
In Florida a marriage is considered long term after 17 or more years. Although the term “permanent” alimony is utilized, the term is somewhat misleading due to the fact that an award may be modified or terminated based upon a substantial change in circumstances.
If you have questions about alimony, please click the consultation button to schedule a free consultation. The Taylor Law Office has locations in San Marco and Northern St. Johns County to serve you.