Articles Posted in Alimony

Tax-Reform-300x300When couples divorce in the State of Florida, one consideration is will there be alimony and if so, how much for how long? Alimony comes in different shapes and sizes, but one aspect has consistent: the spouse that pays the alimony is allowed to reduce his or her payments from the gross income in the IRS Income Tax filings, and the receiving spouse needs to include these payments in his or her gross income.  This may soon, however, become a thing of the past. Tax reform is one of the biggest issues in Washington D.C., which will have an impact on every person in the United States.  There are many aspects in the proposed 2017 tax reform, but one that seems to less talked about is the plan to change how alimony is treated. Instead of the paying spouse being able to deduct alimony payments from gross income, the proposed reform will no longer recognize that deduction. Further, the receiving spouse will no longer have to claim the alimony as part of his or her income.

Since tax reduction has been one way to make alimony more palatable to the paying spouse, this change will have significant impact on the likelihood of couples reaching mediated agreements or settlements in a Florida divorce case.  One reason given for the proposed change is that while most paying spouses claim their alimony deduction, many receiving spouses do not include alimony in their taxable income.   This possible change, however could have considerable effects on how divorce will evolve, as family law attorneys and judges will need to consider the tax implications far more closely when determining if alimony is not only appropriate, but also what the likely ramifications will be to the payor spouse.

Alimony is  one of those issues that continues to be an area of contention, battle, and court fight between divorcing spouses. While it is reasonable that the spouse who stayed home to raise the children, should have some financial support, the legislature and courts in Florida have already started to chip away that at the presumption that financial support from a divorced spouse should last for decades or the rest of a spouse’s life. The burden to overcome not only the need for alimony, but now the ability of a paying spouse will become far more difficult to show in court if this proposal ultimately becomes law.

MoneyvLove-thumb
Fla Stat. §61.08(4) provides statutory guidelines for Florida courts to consider when evaluating importance of the duration of a marriage as a factor for alimony consideration.  In order to categorize the duration of marriages, courts look from the date the marriage began until the date one of the spouses filed for dissolution of marriage. According to the statute, short term marriages are marriages under seven (7) years, and long term marriages are all marriages that last longer than seventeen (17) years.  However, there is a “gray area” in the 10-year gap between these years. The marriages falling between the seven (7) to seventeen (17) year marriage lengths are known as marriages of “moderate duration.”

Categorizing the duration of a marriage is important. The court looks to a multitude of factors, found in Fla. Stat. §61.08 (2)(a-j), when considering the amount and the duration of an alimony award. A marriage categorized as a marriage of moderate duration is particularly important when considering an award of permanent alimony.

If a marriage is a long term marriage, as defined in the statutes, the marriage has with it a presumption in favor of a permanent alimony award. If after the court considers all other alimony factors and finds that no other alimony type would be proper, permanent alimony can be awarded. Whereas, a short term marriage would absolutely not have that same presumption. For a permanent alimony award in a short term marriage the court would have to find that exceptional circumstances exist to support such an award. Whereas, a moderate term marriage is open to a permanent alimony award also, but a higher standard of proof is necessary when awarding permanent alimony in cases of moderate duration marriages. Clear and convincing evidence as to the alimony factors must be presented to the court to prove  that the receiving spouse is entitled to alimony.

money-chainedWith many divorce cases also comes the notion of alimony. There are a number of different types of alimony in Florida, varying from permanent to rehabilitative. In some instances judges will award a party with “nominal alimony.” But, while you wont see this form of alimony in the statutes, you will see that this has developed in case law over the years. Nominal Alimony is not a form of alimony like rehabilitative, permanent, or durational, instead the nominal alimony designation is simply a space preserver to allow the receiving party to apply for a modification at a later date. Few states, including Florida, recognize this type of alimony award.

Nominal alimony differs from rehabilitative alimony because rehabilitative alimony is temporary for receiving spouse until he or she can get on his or her own feet. This is typically awarded in cases where the receiving spouse surrendered their ability to work during the course of the marriage in order to stay home and care for the kids or conduct other household duties. Rehabilitative alimony will temporarily support the receiving spouse until he or she is able to seek employment.

Whereas with nominal alimony, the court may order a spouse to pay a significantly small amount, as small as $1 a year, until that spouse is able to pay larger amount. This amount is not meant to support the receiving spouse, but instead preserves the receiving spouse’s right to receive alimony at a later date. It also reserves the court’s jurisdiction to revisit the issue of alimony should the paying spouse’s circumstances improve. The court may choose to award nominal alimony if it is likely that the paying spouse’s circumstances will change in the future and that this change would warrant alimony for the receiving spouse.  It is the court’s decision to determine whether or not to award nominal alimony.  If the court does not feel enough evidence exists to prove that the spouse’s financial circumstances will change in the foreseeable future, the court can choose not to award nominal alimony and instead enter an award for one of the statutory forms of alimony available.

Florida law allows for a court to grant various types of alimony awards. The types of alimony in Florida are lump sum, durational, temporary, rehabilitative, bridge the gap, and permanent. Naturally most people who would qualify as the recipients desire permanent alimony. But, simply desiring permanent spousal support is not alone sufficient grounds to be awarded permanent spousal support. The Florida courts consider a variety of factors prior to the entering of an alimony award. While there are a myriad of factors that contribute to the calculation of an alimony award, I typically begin my assessment of the possibility of alimony by asking my clients a few key questions.

I begin my assessment of the alimony possibility in a case by first looking at the needs of the possible recipient spouse, the ability of the obligated spouse to pay, and the length of the marriage. While permanent alimony can be granted by agreement of the parties in dissolution cases of short term, moderate term, or long term, the court tends to limit permanent alimony awards to marriages of long term. Florida marriages under seven (7) years are considered short term marriages, marriages seventeen (17) years and over are considered long term and the marriages that fall in the middle are considered either “gray area” or moderate marriages Fla. Stat. 61.08. While a marriage may fall into the moderate term may not be automatically open to the permanent alimony award, the court will consider the permanent alimony award in a moderate term marriage if the court has compelling reason to do so based on the factors used when considering an alimony award.

Permanent does not actually mean permanent. While some alimony awards are deemed non-modifiable a permanent alimony award does not always come with that level of protection. Some parties can choose to contract into a permanent non-modifiable alimony award, but if I had a client who was interested in agreeing to a permanent non-modifiable alimony award I would strongly suggest a reconsideration of that decision. Life changes, circumstances change, and those changes are often unpredictable. Due to the unpredictable nature of life the statutes allow for modifications of some alimony awards. While a permanent alimony award would secure the receiving spouse alimony until they marry, die, or cohabitate in a supportive relationship, it can also be modified in some circumstances. While that court may modify the permanent alimony award the court will take into consideration if the award was granted by a judge or entered into voluntarily by agreement by the parties. Florida case law, in some districts, supports the notion that modification of alimony that was entered into by agreement of the parties, rather than by a decision of the court, has a greater difficulty overcoming the burden of proving a substantial change in circumstances that was not contemplated at the time of the setting of the alimony.

th.jpgFlorida marriages lasting longer than sixteen (16) years may result in an award of permanent alimony if the spouses decide to divorce. Over recent years the debate of alimony in Florida has been at the forefront of legislative session. The Florida legislature along with special interest groups and the Florida Bar have thrown their hats into the rings of discussion creating some reform with things like new parameters for determining the length of alimony. In the 2013 legislative session a new bill has been proposed that has thus far passed in the Civil Justice Committee and is making its way through the House of Representatives. Its companion, Senate Bill 718 is not ripe for voting yet.

Mainly special interest groups like “Florida Alimony Reform,” who has presented prior bills and led demonstrations at the Florida State Capitol, have headed the proposed changes to alimony. The House Bill 231 makes the following proposed changes to the present Alimony law §61.08, Florida Statutes(2012) are summarized as follows:

1. Revision of factors considered in determining alimony;

alimony.jpgThe world of, “do it yourself,” has become far easier over the years with the invention of the internet. People now walk into doctors’ offices and tell the doctor what their diagnosis is and what medication to prescribe. The same is true for divorces, wills and the like. In a Florida divorce there can be many moving parts to figure out, for example, whether alimony should be paid; how long it should be paid; who will take what bank accounts and debts; etc. The reality is that dealing with a divorce is similar to a company dissolving and if each item is not accounted for, then the consequences to each party can be expensive and financially devastating.

In a Florida divorce, alimony is based on a number of factors, including but not limited to, length of the marriage, contribution of each spouse to the marriage, the standard of living of the parties, the needs of the requesting spouse (i.e. whether she/he has earning potential), and the ability for a spouse to pay alimony. Understanding these factors can be complicated because instead of looking at a need as a monthly amount we have a tendency to think through our bills and say, “You pay x, y and z bills.” In a divorce involving alimony, having a spouse pay such bills can be a challenge financially to the party receiving the benefit and the party paying. Alimony is income for tax purposes to the receiving party and a deduction for the party paying, not knowing the amount paid can be detrimental to filing taxes correctly.

Also, not knowing how long alimony should last can cause future complications if the parties reach an agreement, without legal help, and agree that the alimony is going to be non-modifiable over time. Non-modifiable alimony actually means that neither party can ask for more money or to pay less money each month. And often, when I see parties have reached their own agreement, this is a factor that they put into the agreement. The downfall, if the paying party wants to retire s/he must do so with a continued ability to provide alimony for whatever duration was agreed upon by the parties.

911121_hot_type.jpg
Divorce laws change from state to state regarding such things as alimony. Couples that have divorced and have either moved to Florida or were divorced in Florida and have changes in their lifestyle and circumstance that warrant a modification of alimony may need to know whether a change to alimony is possible. Florida does allow for a party to file for an increase, decrease or termination of alimony in certain circumstances. Understanding your rights and options in an alimony modification case can be beneficial to you in protecting your rights and interests.

In order to have access to the court for a modification there must be a substantial change in circumstance. For example, if you were awarded alimony based on the fact that you can hold a job, but that your income is less than your ex-spouse, then you may need to seek an increase in alimony if you become disabled and unable to work. Alimony in Florida is typically awarded to a party if she/he is in need of financial assistance from the other party and the other spouse has a financial ability to pay alimony. However, the amount is based on the need of the individual as well. So, if that person’s needs change, not due to voluntary action of that party (i.e. quitting his/her job), then alimony may need to be modified accordingly.

The same is true of a downward modification of alimony, meaning a decrease in the amount of alimony to be paid. For example, Hank has an annual income of $350,0000 and Mildred has an annual income of $30,000. In this case, Hank most likely would be ordered to pay Mildred alimony. However, Hank suffers an eye injury and can no longer work in his job and is placed on disability. Hank’s income decreased due to an involuntary occurrence, meaning he most likely did not intentionally go on disability; therefore, his ability to pay alimony at the same amount is limited. Hank may be given a decrease in the alimony he is to pay Mildred or it may deemed that he can no longer pay.

Written by: Lenorae Atter, Attorney at Law

1388612_market_movements_2.jpgAlimony is not guaranteed in a Florida divorce. Though there are certain people that believe that simply because they are married that alimony will be awarded in a case where one party makes even just a little more than the other. The fear of filing for divorce often stems from such myths that circle throughout social networks and news. However, Florida is a little more methodical in its legal approach to an award of alimony. For example, the Florida legislature has provided guidelines to establish when alimony may be awarded in a divorce and has provided a guideline for the length of the alimony as well. Therefore, simply being married does not necessary mean you or your spouse are entitled to alimony payments, and it does not mean that if you do have an alimony case that the alimony will necessarily be forever.

Alimony in Florida is designed to provide support when the marriage meets certain criteria, in determining such, there are factors to consider such as: length of the marriage, contribution to the marriage, status quo of the marriage, education of the parties, and many other small details. Also, there is are different forms of alimony: permanent, lump sum, rehabilitative and bridge the gap.

Written by: Lenorae Atter, Attorney at Law

1228830_wooden_box.jpgAlimony is a common issue in many Florida divorces. The award of alimony in Florida is based on a number of factors, including but not limited to: length of the marriage; contribution to the marriage; standard of living created during the marriage; the need for ongoing spousal support; and an ability to pay spousal support. Once alimony is awarded, unless the order states otherwise, it may be modified upon the occurrence of a substantial change of circumstance of one or both parties. For example, if a former spouse inherited a large sum of money, then there may be reason to modify or terminate the alimony.

In a divorce, a future expectation of an inheritance cannot be factored into the award or determination of alimony. The reason is that wills and estate beneficiaries can be changed and the court must rule based on the actual financial situation of the parties at the time the divorce occurs. So, even if the Husband believes his Wife will inherit $1 million upon the death of a relative, the inheritance cannot be factored into the spousal support need unless it has actually been paid to the Wife.

Written by: Lenorae Atter, Attorney at Law

1194017_wooden_building_blocks-1.jpgIn Florida, alimony is based on a number of factors, including length of the marriage, contribution to the marriage, a party’s ability to pay alimony and the other party’s need for support. Over the years, the court has found that if the spouse receiving alimony begins to cohabit with someone, in a supportive relationship, then that could be grounds for modifying alimony. However, what happens if the ex-spouse that receives alimony is living with someone else, but that person is not assisting with the bills, can alimony be reduced because of the actual cohabitation with another?

On or about October, 3, 2012 Florida’s Third District Court of Appeals (DCA)located in the Miami-Dade area, heard a case regarding this topic and issued an opinion on whether simply living with another gives rise to modifying alimony. In Murphy v. Murphy, 3D11-1604 (Fla. 3rd DCA October 3, 2012), the paying party was asking the court to reduce or terminate the alimony obligation because the Former Wife was residing with another man. The court was asked to apply Florida’s Cohabitation Statute as it relates under family law legislation as stated § 61.14(1)(b)(2), Florida Statutes (2012).