Nothing Last Forever – Not Even Alimony

American alimony is rooted in practices established in England. England did not allow an absolute divorce without a Private Act of Parliament until 1857. Prior to that time, divorce was addressed in the ecclesiastical courts which could only grant a legal separation. Legal separation was accompanied by obligation of the husband to maintain the wife’s standard of living.

Women had limited rights and most of a family’s income was generated by the husband. The ecclesiastical courts would generally grant temporary alimony during the proceeding and permanent alimony at its conclusion, with the rule of thumb being that the wife would receive 20% of the total income of the parties.

The Matrimonial Causes Act of 1857 moved divorce jurisdiction from the ecclesiastical courts to civil courts, which also allowed absolute divorce. Absolute divorce in the United States did not have to wait for change in English law. Puritan New England colonies in the 1600s allowed judicial divorce for fault. However, the concept of alimony did make its way across the pond.

The English concept of alimony was to provide permanent or lifetime support for a dependent spouse. Florida divorce law was originally based on fault and alimony awarded only to a wife who was not guilty of marital misconduct, such as adultery. Alimony was not only intended to provide support but also to punish a wrongdoing husband.

Florida’s legislature changed the divorce landscape by adopting no-fault divorce in 1971. The legislature continued to address the issue of alimony off and on. In 2011, the legislature adopted the concept of durational alimony which links the length of an alimony award to the duration of the marriage. In 2023, the legislature struck again. Permanent alimony was abolished.

No durational alimony may be awarded for marriages that last less than three years. For marriages of three to 10 years, the maximum duration of alimony is 50% of the length of the marriage. For 10 to 20 year marriages, the maximum duration of alimony is 60% of the length of marriage. For marriages of 20 years or more, the maximum duration of alimony is 75% of the length of the marriage. Maximum alimony is now limited to the lesser of the recipient’s actual need or 35% of the difference between the parties’ net incomes.

The elimination of permanent alimony does not eliminate the alimony battle. A spouse asking for alimony must establish a need as a condition precedent to an alimony award. Need is based in large part on the living expenses of the requesting party based on the standard of living during the marriage. There is often much argument over what the standard of living was during the marriage as well as the actual need of the requesting party.

The requesting party is obligated to provide his or her own support to the extent that it is reasonably available. That means the requesting party cannot generally ask for alimony to pay all of his or her living expenses without also being gainfully employed. Ability for self-support is yet another battlefield in the alimony arena as each party may have a different opinion of the requesting party's ability to generate income. Establishing ability often involves expert testimony as to qualifications and available employment with the judge making a final decision.

If the requesting party is unemployed or underemployed, the judge can impute income. The concept of imputed income can also be applied to the paying party.

Once any need of the requesting party is quantified, alimony cases then turn to the ability to pay of the other party. Ability to pay is based largely on after-tax income, although the Court is also to look at the reasonable living expenses of the party who is asked to pay alimony.

Before the judge even gets to an alimony issue, the judge must decide how to divide marital assets. Assets can generate income and that income is included when determining need of one spouse and ability to pay of the other. A party is not obligated to withdraw from principal to pay living expenses unless there is insufficient income. That means the calculation of need and ability to pay will not amortize withdrawal from savings or other financial accounts in the calculation.

IRA and 401(k) accounts are marital assets. That means the judge includes them in deciding who gets what under the dissolution of marriage statute which generally provides that marital assets are to be equally divided. A retirement account can be divided and distributed. If one party or the other is then of an age where federal law requires such minimum annual distributions, those distributions are included as income for alimony purposes.

The 2023 statutory amendments did not eliminate other types of alimony, such as bridge-the-gap alimony to provide support during transition from marriage to single life and rehabilitative alimony to assist in establishing the capacity for self-support. And there is still a right to ask for modification upon retirement or substantial change in circumstances. But, at least in current form, the statutes bar an award of permanent alimony.