Articles Posted in Alimony

Florida-Alimony-Modification-300x246When you are getting divorced, the court is going to have any different components when dividing up your life between you and your spouse. From Parenting to Personal Property, the lists can be significant and the stress of balancing what your priorities can take its toll. In many cases, when spouses divorce, a big question that comes up is “what about alimony?”

In Florida, there is a gradient of marriages that helps to guide parties and judges as to when alimony is appropriate. In short term marriages, those under 7 years, the likelihood of substantial alimony is low. In moderate marriages, between 7 and 17 years, there is a better possibility that you will receive alimony, but more likely for the length of time that your marriage lasted. For individuals married for more than 17 years, there is a rebuttable presumption that the higher paid spouse will owe alimony to the lesser paid spouse for a long time period, and in some instances, permanently.

But what happens when the situation changes from when you get divorced? Many alimony paying spouses find themselves in new territory when they find out that their former spouse has now gotten married or is living with someone new. If there has been a substantial change in circumstances, then you may be entitled to a modification of your alimony. Marriage to someone new is a termination of alimony, but it does not happen automatically. Having an experienced Florida family attorney file a motion to stop your alimony, and being able to prove that your ex is remarried is a prerequisite to alimony termination. Next, if your ex is living with a new romantic partner, and they are sharing in living expenses, or there is a financial dependency between them, co-habitation or “living together” is another basis for when your alimony may be decreased or terminated. These cases are very evidence based, and that is the tricky part. Being able to prove that your ex is now living with someone else may be the hardest part.

Florida-Adultery-300x223Infidelity is a heartbreaking reality for many marriages.    The spouse who discovers the infidelity often goes through a spectrum of emotions, but at the bottom of all of them feels betrayed by their partner.   This break of trust makes many spouses angry or skeptical of believing anything from the other spouse and causes there to be walls to communication that are difficult to overcome.

In Florida, we are a “no fault” state, when courts consider dissolutions of marriage.   Each spouse will come before the court with their requests for how life should look post-dissolution, but the court rarely gets into why the parties are divorcing.   This is difficult for many “cheated on” spouses to understand who have felt a true sense of loss in dealing with divorce.

In Florida, there are some instances, however, when the court does look at the impact of infidelity, though they are few and very limited.   If the spouse has used marital funds in furtherance of the extra-marital affair, the court will consider this “waste of marital funds” as a component in determining whether alimony is appropriate and how much to award.  In order to prove that marital funds have been used, it is imperative that actual evidence shows transactions that indicate the spending.   An experienced Florida family law attorney can help you obtain access to your spouse’s accounts, credit cards, and other means by which these transactions can be shown.   Looking for florist purchases, jewelry stores, hotel charges, or high meal expenses, over periods of time, may show patterns of infidelity.  Further, in many instances, dating apps and other social media, may be ways to discover whether your spouse is involved in an extra-marital affair.  In many instances, hiring a private investigator to take photographs, track your spouse, or search for financial holdings that you may not know about is helpful and can be used as clear evidence for the court’s consideration.   While this can be another expense, if it has the likelihood of awarding more alimony or timesharing, it may be well worth it.   Discussing this with an attorney, before you file for divorce, is key, as once the filing for divorce occurs, typically spouses are more careful in their actions, and proving relationships after the date that you file do not indicate infidelity, but rather that your spouse is commencing to moving on.

Florida-Alimony-300x213Many people stay in marriages that they would otherwise leave, because they are afraid of the financial strain that divorce presents.  For many, the question of whether an alimony award is required by Florida law is an obstacle that seems insurmountable when considering going it alone after many years of marriage.

For the spouse who has stayed home to raise children or has sacrificed their career by moving for the higher paid spouse, the reality of how this spouse will afford to pay the bills, keep the marital home, or have any sense of security is terrifying, and in many instances, they have relied heavily on the higher paid spouse to take care of the finances while they have taken care of the household.   Alimony in the State of Florida is meant as a means of making that transition a more normal consideration, because the court will consider whether the lesser paid spouse has a work history, and what their needs actually look like, and how the higher paid spouse can continue to provide financial stability to both spouses while going from married to single.

On the other hand, the higher paid spouse in many instances, may recognize that his or her higher income has been able to afford a level of comfort when providing for the family under one roof, but the likelihood of the same level of financial freedom while providing for two households seems impossible.  In these cases, it is important to recognize that Florida family law courts have to balance the need and ability of both spouses to contribute to the transition of being married to single for both spouses. Alimony may be presumed in long term marriages, in Florida, meaning over 17 years of marriage, but it is not guaranteed and the court will consider whether an actual need for financial assistance between spouses is required. Factors that the court will consider not only include how much money each spouse makes, but also what the lifestyle of the marriage included, what each contributed to the marriage, and also the overall asset and debt liability that exists for each spouse after the marriage has ended.

https://www.jacksonvilledivorcelawyerblog.com/files/2020/01/Permanent-Alimony.001-300x171.jpegThe concept of permanent alimony is a frightening proposition for many breadwinning spouses who are getting divorced from a long time spouse.  In fact, it can be a reason or deterrent for people filing for divorce, who have been the higher earning spouse in a marriage.  Permanent alimony in Florida is a rebuttable presumption in divorces for marriages when the spouses have been married more than 17 years, which means that the court is more likely than not, assume that in cases where two spouses have been married for at least 17 years, that the spouse that has earned less or stayed home may be entitled to support for the remainder of his or her life, if the spouse can show that they have a need for alimony.  What it does NOT mean is that if you are married for 17 years that a spouse is entitled to alimony, regardless of the facts and circumstances.

In determining whether to award alimony, the court must first consider if the party requesting shows a need for alimony, after considering not only the incomes of the parties, but also in how the debt and assets from the marriage are being divided between the parties. If the court does find that one spouse has a need for alimony, the court next examines whether the higher paid spouse has the ability to pay alimony, considering their income, expenses, and also the division of assets and liabilities in the marriage.

If the court finds that there is a need and ability to pay, next the court will examine the statutory factors to determine an alimony amount, which include:

Gray-Divorce-300x300

Gray divorces can put older Floridians in the financial red. The divorce rate for individuals over the age of 50 has doubled over the past two decades, and while other age groups have shown a decline in divorce, this age group continues to maintain or increase in more recent years. While the impact of minor children is less frequently occurring in these divorces, the financial impact of a “later in life” divorce can have substantial financial effects on the spouses in the State of Florida.

Considerations must be given to the intertwined finances of couples that have long term marriages, as well as the accumulation of assets and liabilities, health concerns, and a likelihood of permanent spousal support. The assets of these couples can be significant, and the need for an experienced Florida Family Law Attorney that can help to manage and lessen the financial impact of a divorce is essential to maintaining and maximizing the distribution of assets through a divorce.

In many situations, these couples have amassed significant retirement accounts, pensions, real estate, and other personal assets that should be itemized for proper allocation of assets to be determined marital and non-marital property, when evaluation equitable distribution in a divorce case.  Unfortunately, this information has not been fully or openly discussed by the spouses and requires that records from employers and banking institutions be directly subpoenaed from the source to avoid continued misinformation.

Military-Service-300x211In the State of Florida, one of the most unique issues in a military divorce is the calculation of alimony and child support based on the income of the parties.  When one spouse is OR both spouses are employed as service members, it is important to recognize that aspects of income, some not even taxable by the IRS, will be considered income when it comes to providing for your children and former spouse after a Florida Dissolution of Marriage.

Calculating income for a Florida military divorce or paternity action creates special issues, because of the differences in how service members are compensated as compared to the civilian workforce.  Most of the pay information is found on the Leave and Earning Statement, which details how much you (or your partner) earns, their rank, years of service, but also any deductions. In every day terms, this is essentially the equivalent to your pay stub.

When considering what is inclusive income, a Florida court will consider the service member’s pay first. Thus, the basic pay, hazard pay, combat pay, and flight pay will definitely be considered in the calculation of the available income. These forms of pay are usually taxable, therefore it should come as no surprise that they are income.  Military families need to also include the allowances that decrease a service member’s cost of living, such as housing allowances (BAH), disability pay, subsistence allowance (BAS), per diem payments, and cost of living adjustments (COLA). These “allowances” not only decrease the daily living expenses of the military spouse, but also act as an increase in their income, and become a complicated issue for family law judges to determine when considering child support calculations. These additions are usually considered to be income, as they are cash benefits which ultimately would be considered components of gross income when calculating child support of the families’ children.

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.

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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.

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