Alimony – What They are Fighting For

Alimony has been around as long as divorce. In one form or another, a spouse has had an obligation to support his or her spouse and depending upon circumstances even a former spouse. 

With the adoption of no-fault divorce, there is no longer a need to prove wrong doings to get divorce. Make the claim that a marriage is irretrievably broken and divorce is granted. The claim alone is sufficient proof of its truth. Parties in a divorce case still have much to argue about. A lot of the arguing involves money.

Years ago, Florida’s legislature tried to stop the argument about child support by adopting a child support schedule that is supposed to settle the child-support argument absent special circumstances. The statute establishes an amount of child support based upon income of the parties and the amount of time the child or children spend with each parent. The statute has worked reasonably well.

Since the child support guidelines work well, some legislatures hope to bring the same degree of order to alimony issues. But the legislation introduced to adopt an alimony schedule similar to the statutory child-support guidelines has faced strong and successful opposition. The argument against an alimony schedule revolves around traditional concepts of need by one spouse and ability to pay by the other with opponents explaining “it’s complicated.”

That does not mean the legislature has ignored alimony over the years. The legislature has often tinkered with the alimony statutes and the most recent version is far different from what courts would have applied years ago. Section 61.08 of Florida Statutes is the legislature’s primary statute addressing alimony. Let’s take a look at the statute.

The statute confirms a court may award alimony in a divorce case as the judge feels “is equitable.” A judge can award periodic or lump-sum payments and may specifically consider adultery of either spouse resulting in economic impact in determining the amount of alimony. The judge is required to make written findings of fact regarding the basis for awarding alimony, including the type of alimony and the amount.

The judge is first responsible to make specific findings of fact of actual need by one party and of the ability to pay by the other. The person seeking alimony has the burden of proving need and also the other party’s ability to pay.

If the judge decides the party seeking alimony has met his or her burden of proof, the judge may then award alimony. The statute mandates the judge to consider all relevant factors, including but not limited to (a) duration of the marriage, (b) standard of living established during the marriage, (c) age and condition of each party and impact of any disability on either party, (d) resources and income of each party, including the income generated from nonmarital and marital assets, (e) earning capacity, education, skills and employability of the parties, (f) contribution of each party to the marriage, including but not limited to services rendered in the home or career building of the other party, and (g) responsibilities of each party with regard to any minor children.

The type and duration of alimony depends in large part on the length of the marriage. Statute defines a short-term marriage as less than 10 years, a moderate term marriage as between 10 and 20 years and a long-term marriage being 20 years or longer. Length of a marriage is calculated from the date of the marriage until the date of filing the divorce action.

The statute provides different kinds of alimony. Bridge-the-gap alimony may be awarded to provide support in making the transition from married to being single. This alimony must assist with legitimate identifiable short-term needs and may not exceed two years. Bridge-the-gap alimony ends with the death of either party or remarriage of the recipient.

Rehabilitative alimony may be awarded to assist the recipient in establishing capacity for self-support through redevelopment of previous skills or acquisition of education or new skills. There must be a specific plan included as part of a rehabilitative alimony award and the award may not exceed five years. Rehabilitative alimony is subject to modification or termination.

What used to be permanent alimony is now included in a broader class known as durational alimony. Durational alimony may be modified or terminated based upon a substantial change in circumstances and terminates upon death of either party or remarriage of the recipient. Durational alimony may not be awarded unless the marriage lasts three years or longer and length of durational alimony may not be modified except under exceptional circumstances.

Durational alimony is generally limited to a maximum 50% of the length of a short-term marriage, 60% of the length of a moderate term marriage or 75% of the length of a long-term marriage. Under exceptional circumstances (meaning in rare cases) a court may extend the term of durational alimony.

No alimony award is to leave the payor with significantly less net income than the net income of the recipient unless the judge makes written findings of exceptional circumstances.

Florida’s legislature continues to revise the alimony statutes. To date, the legislature has resisted efforts to install a one-size-fits-all formula. Judges still have much discretion and there is a lot of opportunity for argument. In the emotionally filled divorce arena, one or both parties often take full advantage of that opportunity.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.