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.
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.
These factors are pursuant to Florida law, and include, but are not limited to:
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?
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.