What Type of Alimony Can I Get In Florida?
LEGAL MYSTERY MONDAY for August 31, 2015:
It was a time of bell bottomed trousers and pantsuits. The Summer of Love and its remnant petals had blossomed and withered, and America added a 26th Amendment to the U.S. Constitution. Ah. 1971. That’s when Bob and Judy got married. In step with the norms of the day, they agreed that Bob would work, and Judy would stay home and take care of the kids. And for more than four decades, that’s what they did.
One day, Bob told Judy that his secretary, the infamous Betty, was the greatest thing since electric razors and that their marriage was over. Judy wasn’t surprised. After all, tales of infidelity and betrayal were the stardust of every Liftetime movie she had seen. So with the confident women of those daytime television dramas urging her on, Judy beat Bob to the punch and had already filed for divorce a week earlier than his proclamation of lust for Betty.
Judy demanded alimony. Sure, she had a spending habit. She was on a first name basis with the hosts at QVC – and not the cheap stuff. Judy had discerning tastes. “All the more reason for Bob to pay,” she had told her lawyer.
We already know from a previous episode that Judy made out like a bandit in the divorce, but what type of alimony do you think she was awarded? And did you know there are different types of alimony?
What a great time we live in! Though we still don’t have an Equal Rights Amendment, women have more options than home-making while bored by the Young and the Restless, and mercifully, polyester makes a less often appearance in fashion apparel. But one thing remains – alimony. Can you hear the sad trombones? No one likes to talk about alimony, but perhaps with this information in mind, you’ll think twice about establishing a pre or post-martial agreement to address this issue while you can still get along with your spouse. I know. I know. You’re thinking,”But I’m never getting divorced.” Guess how many clients have told me that they once thought the same?
So what kind of alimony was Judy awarded? If we had the martial settlement agreement and/or final order of dissolution of marriage, we’d know for certain, but we can make some pretty good guesses.
Florida Statutes 61.08 governs the award of alimony or “spousal support” (note that we’ve also moved away from “child custody” for the phrase “time sharing”). Nine specific factors are considered, plus the beautiful catch-all provision 61.08(j) that gives attorneys enormous flexibility in making arguments and allows the judges wide discretion in making awards. The specific factors are:
(a) The standard of living established during the marriage. (A plus for Judy.)
(b) The duration of the marriage. (Another score for Judy!)
(c) The age and the physical and emotional condition of each party. (This may be a wash for Bob and Judy.)
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each. (We instantly think this favors Judy, but what if she came to the marriage with a huge trust fund?)
(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. (Probably another score for Judy. Maybe she has an Ebay empire reselling all that QVC crap?)
(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. (Judy is on fire!)
(g) The responsibilities each party will have with regard to any minor children they have in common. (They’re grown now, but I’d certainly hope Judy’s attorney reiterates the evidence supporting factor (f).)
(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. (Impossible to say, until I dream up their finer financial picture in another Legal Mystery Monday.)
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party. (Another issue that requires a conversation with Bob and Judy’s CPA.)
(j) Any other factor necessary to do equity and justice between the parties. (This is where Judy brings up the diamond bracelet that Bob just bought for Betty, and the nest of adultery he bought for Betty in the Bahamas!)
One other factor, buried in subsection 9 of the statute, prohibits an award of alimony that would leave the payor spouse with significantly less net income than the receiving spouse, unless there are findings of exceptional circumstances.
BUT the Court doesn’t even get to these factors until it makes a determination that the spouse requesting alimony has a need for it and that the paying spouse has the ability to pay. The Court will also consider the length of the marriage, which then influences the type of alimony available. Marriages of less than 7 years are considered short-term marriages, 7-17 years are moderate-term marriages, and longer than 17 years are long-term marriages.
The types of alimony are:
Bridge the gap – helps the spouse get through the transition of becoming single and living on one income. It is limited to 2 years. The amount cannot be modified. Terminates upon death of either spouse or remarriage of receiving spouse.
Rehabilitative alimony – helps the spouse develop or redevelop skills or education so that they can better their life, for example if they’ve been a stay-at home mom and never used her degree. Requires a specific plan, such as a timeline for completing the plan and a specific job program or degree program, and it can be terminated or modified upon proving a substantial change of circumstances.
Durational alimony – an option when permanent alimony is not available, for example a marriage of moderate length. It ends at a specific point in the future. It can be modified or terminated, and it terminates upon the death of either party or remarriage of the receiving spouse.
Permanent alimony – the dreaded permanent alimony! You may be surprised that permanent alimony is available for marriages of all lengths. However, if the marriage was not for 17 years or more, the party seeking permanent alimony must prove exceptional circumstances, for example a short-term marriage in which the requesting spouse has become disabled. In any scenario, permanent alimony also requires a finding that no other type of alimony is fair and reasonable. It can be modified upon a substantial change of circumstances, and it terminates upon the death of either spouse or the remarriage of the receiving spouse. As with any family law issue for which a modification requires a “substantial change in circumstances,” permanent alimony can be difficult to change.
And so Judy. Judy, Judy, Judy. My new, very wealthy friend, Judy. If I were Judy’s attorney, I would’ve asserted claims for all the alimony types, with a focus on permanent – in the event that permanent was denied, we would want to have preserved the option for the other types of alimony. Given that Judy was a homemaker for more than 40 years while Bob was the bread winner, and apparently he was bringing home big loaves, permanent alimony is all but assured. However, her spending habit may be a ding against the amount of alimony awarded. We also know that Judy got the lion’s share of the assets in the equitable distribution, and the property award may be a factor that reduces the amount of spousal support.
But Bob died, so alimony ends, right? Maybe. It depends on the precise language of the order and/or settlement agreement. A savvy lawyer will require that alimony be guaranteed by a life insurance policy, an option often overlooked though it is clearly available in the statute, or that the deceased spouse’s estate make a lump-sum payment at the time of death. Trust funds are another way to guarantee and manage spousal support, changing the nature of “spousal support” under the statute to a distribution of property. As you can see, there are a lot of issues and tools, including thinking outside the box with estate planning mechanisms. You won’t read about those in the do-it-yourself Florida Family Law Forms. What would you be giving up if you used the forms alone, without consulting an attorney?
Keep in mind that alimony is a hotly debated topic in Florida. For the past several years, alimony reform has been proposed in the legislature, but no changes have taken hold since the 2011 amendment. Advocates for reform are pushing the issues of eliminating permanent alimony and creating a formula, similar to the child support guidelines, to better help attorneys and judges find a fair and reasonable amount that could be awarded. Thus, if you’re reading this after September 2015, the lay of the land may have changed, another reason why you should consult an attorney.
Whether you feel your past alimony award was unfair, or if you’re not sure what type of spousal support for which to ask, I can help. Call me.