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Orlando Alimony Attorneys
Alimony can often be one of the most contentious issues during any family law matter. In the State of Florida, there is no set formula for alimony and judges have wide discretion in determining the amount and term of alimony. Although the American Academy of Matrimonial Lawyers has provided a formula for alimony, this formula is merely a guideline and is not followed by most judges. When presenting or defending an alimony claim, it is imperative to know the proper standard and considerations to present to the trial court.
2019 Changes to Alimony in Florida
Effective January 1, 2019, alimony will no longer be tax deductible to the person paying the alimony and taxable as income to the recipient. This means that the individual paying the alimony will no longer receive an off the top deduction. In other words, alimony will be much more expensive for the individual that is required to pay the alimony. However, alimony will no longer be counted as income to the spouse that is receiving the alimony. The new alimony tax laws only apply to divorce finalized after January 1, 2019. The bill is not retroactive and will not impact current alimony agreements. Read more about the tax bill eliminating the alimony deduction.
Factors for Determining Alimony in Florida
These factors are pursuant to Florida law, and include, but are not limited to:
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and the physical and emotional condition of each party;
- The financial resources of each party, including the non-marital and the marital assets and liabilities distributed to each;
- 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;
- 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;
- The responsibilities each party will have with regard to any minor children they have in common;
- 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;
- All sources of income available to either party, including income available to either party through investments of any asset held by that party; and
- Any other factor necessary to do equity and justice between the parties.
Further, alimony is based on need and ability to pay. The party requesting alimony must be able to prove that he or she has a need for alimony and that the other party has the ability to pay alimony.
For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater.
Further Reading: How to Minimize Your Alimony Obligation during Divorce in Florida
Can a court impute a reasonable rate of return on non-liquid assets for the purpose of determining alimony?
Can a Court Award Non-Modifiable Alimony?
While parties may reach an agreement to have non-modifiable alimony, there is no provision in the law to allow a court to award non-modifiable alimony. Smith v. Smith, 689 So. 2d 1312 (Fla. 5th DCA 1997). The Fourth District Court of Appeal expanded upon the prohibition against non-modifiable alimony in the case of Nethery v. Nethery, 951 So. 2d 976 (Fla. 4th DCA 2007). The court in Nethery opined that “the trial court has broad discretionary authority to do equity between the parties. Rosario v. Rosario, 945 So. 2d 629, 631 (Fla. 4th DCA 2006). However, in Smith v. Smith, 689 So. 2d 1312, 1312 (Fla. 5th DCA 1997), the court noted that “there is no provision in the law for non-modifiable permanent alimony'” and ordered the provision stricken upon remand. While it is true that under special circumstances lump sum alimony as support can be awarded, there is no corresponding provision in the law for an award of non-modifiable alimony. See Nethery v. Nethery, 951 So. 2d 976 (Fla. 4th DCA 2007).
Section 61.08 restricts the judicial powers of the court when awarding alimony. While the court may find that durational alimony is non-modifiable as to length, it may not restrict the ability for a payor to modify or terminate his or her alimony obligation upon a substantial change in circumstances in accordance with 61.14, Florida Statutes.
Types of Alimony in Florida
- Bridge-the-gap Alimony – Bridge-the-gap alimony may be awarded to assist a party by providing support to allow the party to make a transition from being married to being single. Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short-term needs, and the length of an award may not exceed 2 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.
- Rehabilitative Alimony – Rehabilitative alimony may be awarded to assist a party in establishing the capacity for self-support through either: (1) the redevelopment of previous skills or credentials; or (2) the acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials. In order to award rehabilitative alimony, there must be a specific and defined rehabilitative plan which shall be included as a part of any order awarding rehabilitative alimony. An award of rehabilitative alimony may be modified or terminated based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan.
- Durational Alimony – Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration. An award of durational alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances. However, the length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.
- Permanent Alimony – Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a divorce. Permanent alimony may be awarded following a marriage of long duration (17+ years) or following a marriage of moderate duration (7-17 years) if such an award is appropriate upon consideration of the factors, or following a marriage of short duration if there are exceptional circumstances. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship.
- Temporary Alimony – A judge can award temporary alimony when a couple has separated, but has not yet divorced, or if the divorce is not yet finalized through the court system. Temporary alimony allows the receiving spouse to maintain a certain standard of living while adjusting to the reality of a marital breakdown. An award of temporary alimony is appealable during the pendency of a divorce case.