Articles Posted in Alimony

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce involving alimony, there are multiple factors to be considered in determining an award of alimony. Florida statutes provides for alimony under circumstances, including the length of the marriage, needs of the parties, ability to pay alimony, lifestyle during the marriage, contributions to the marriage, etc. So, if you and your spouse make significantly different money, does that automatically entitle you to permanent alimony?

The courts have addressed this issue over the years and have determined that simply showing a difference in income does not mean that a party is entitled to permanent alimony. For example, if a Wife makes $300,000 per year and the Husband makes $500,000 per year, which does not mean the Wife automatically qualifies for permanent alimony. In order to be awarded permanent alimony it has to be shown that not only the length of marriage meets the statutory requirements (e.g. greater than 17 years), but also that the requesting party has an ongoing need for permanent alimony. A need for alimony basically goes to the actual living expenses of the spouse and whether she/he has an ability to pay said expenses. As such, if $300,000 per year is enough to help Wife maintain her expenses, then she does not have an ongoing need for alimony.

Written by: Lenorae Atter, Attorney at Law

In Florida, alimony is generally a factor in a divorce where one spouse makes considerably more income than the other. In cases involving alimony, such as things as length of the marriage, contributions to the marriage, marital lifestyle and the like are factors to consider when deciding what type of alimony should be awarded and for how long. However, what are the factors the court looks at later when a modification or change to alimony may be necessary?

In order to modify a prior family law court order, the requesting spouse must file an action with the court and establish, within the document, that there has been a substantial change in circumstance. A substantial change in circumstance can be anything from the receiving spouse won the lottery to the paying ex-spouse being demoted. Whatever the change, it has to be significant to warrant a modification to the prior order and typically, a substantial financial change is a 15% increase or decrease in income.

Written by: Lenorae Atter, Attorney at Law

Normally in a Florida divorce, when alimony is awarded is based on the single needs of one spouse and the other spouse’s ability to pay. Generally, Florida alimony is based on a number of factors, including the length of the marriage, marital lifestyle, needs of the requesting spouse and the parties’ historical contributions to the marriage (homemaking, breadwinner, etc.). Also, alimony is normally contingent upon the requesting spouse living alone and there being provisions that allows for alimony to be modified or terminated if the spouse receiving alimony later cohabitates with someone or remarries. However, recent court decisions have made it clear that the provision allowing for modification in those situations does not automatically lead to the termination or reduction in alimony.

In some cases, alimony may be awarded in a Florida divorce even when the requesting spouse resides with someone else. In certain cases, there may not be many financial options for a spouse so his or her financial needs may be based on what his or her expenses are living with a roommate. In that situation, alimony is actually determined and calculated based on the requesting spouse’s actual financial needs for his or her portion of living expenses. For example, if Ann and Ben divorce and Ben cannot afford to rent his own place, then Ben may seek a living situation with a roommate. In that situation, Ben is still responsible for one-half the rent, utilities, cable, etc. Ben’s income may not be enough to cover even the one-half share of his new place and in the divorce he would show this to the judge. If Ben is awarded alimony based on his present needs, then that is alimony granted even though he cohabitates with someone else.

Written by: Lenorae Atter, Attorney at Law

When first meeting with divorce clients in my Jacksonville and Ponte Vedra, Florida offices I often get detailed information. The details that ultimately are important in the first meeting include but are not limited to, the date of marriage; the incomes of the parties; the work history of each spouse during the marriage; and a list of assets and debts, including the marital home, it’s value and monthly mortgage payment. While clients may want to address the reason they are discussing divorce, I try to focus on the things that are related to what can happen if they were to proceed with divorce. I find this tactic helpful in educating clients so that they understand such as things as why she/he will most likely need to pay alimony to the other spouse. That seems to be the most common concern and one that I like to address as soon as possible.

So, why might you be responsible for paying alimony to your spouse? In Florida, alimony is determined based on factors of length of marriage, contribution to the marriage, financial needs, financial ability to pay alimony, and a few other details. In order to provide a clearer picture of the, “why,” I will provide some examples of what a marriage may look like:

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, alimony may be awarded to one of the parties based on the circumstances surrounding the marriage. As a Jacksonville divorce lawyer, I typically tell clients that alimony is based on the need of the party and the ability of the party to pay alimony. As an example, if the Wife makes $30,000 per year and the Husband makes $100,000 per year and their expenses are not so vast as to create a vacuum in which the Husband cannot pay alimony, then most likely the Wife will be awarded alimony depending on her own monthly needs, expenses, debts and the like.

However, in determining alimony, the court must look to the available money of the parties. This means not just money available through employment, but any money that is accessible to either party, including possible monthly payouts from retirement accounts, investments or annuities, like an IRA. Therefore, in assessing whether alimony should be awarded and how much should be awarded, the courts can impute income that could be received from annuities and IRAs, even if the spouse is not yet 59 ½ for purposes of IRA withdrawals. Niederman v. Neiderman, 36 FLW D927 (Fla. 4th DCA May 4, 2011). And obviously, this would apply to wives over 59 1/2.

Written by: Lenorae Atter, Attorney at Law

Alimony may be awarded in a Florida divorce, if one spouse can show a need for alimony based on income, expenses, lifestyle, etc. AND if the other party has an ability to pay alimony, based on income, expenses, lifestyle, etc. The initial award of alimony can be for a set period of time or it may be permanent, depending on a number of factors including length of the marriage, ongoing need for support and the like. Once alimony is determined, even if it’s permanent alimony, it may be modified or changed by the court if the seeking party can show a substantial change in circumstance, such as a decrease or increase in income by at least 15% or an illness, or multiple other factors that may lead the court to believe that there is need to modify the existing alimony order. The courts in Jacksonville and North Florida are likely to modify if a significant change in circumstance is shown and the need or ability to pay has been greatly impacted by post divorce issues.

In a recent Florida appellate case, Hahn v. Hahn, 36 FLW D1474 (Fla. 4th DCA July 6, 2011), the Former Husband had requested the trial court modify the permanent alimony he was required to pay. The Former Husband made such a request after he decided to retire at age 69. Upon his retirement, the Former Husband’s income reduced to $1,500 in Social Security and he had individual, monthly expenses of $2,100. He was also receiving financial assistance from his significant other, but he was still paying his individual expenses of the $2,100 per month. The Former Wife was unemployed and, at age 61, was looking for employment. At trial, the Court reduced the Former Husband’s monthly alimony to $450 per month. However, on appeal, the appellate court ruled that the Former Husband did not have an ability to pay, therefore, the appellate court instructed the trial court to either completely eliminate the Former Husband’s alimony obligation or reduce it to a nominal amount (typically a very small amount, sometimes $1 to preserver the alimony in case something were to change).

Previously, another case in a different district court of appeals, Suarez v. Suarez, 43 So.3d 118 (Fla. 3rd DCA 2010), the Former Husband requested a downward modification of his alimony obligation to the Former Wife. At the time of the divorce the Former Husband was making $90,000 per year and the Former Wife was making $21,000 per year. After the divorce, the Former Husband wanted to retire from his job and asked for a modification of alimony. At the time of the request, the Former Husband was receiving $58,000 per year in retirement benefits and the Former Wife was making $21,000 per year. At trial, the trial court ruled that the Former Husband’s alimony obligation was terminated based on the facts presented. However, the appellate court reversed the trial court. The appellate court determined that there was no avoidance of alimony by the Former Husband choosing to retire, but that there was also no determination that the Former Husband did not have an ability to pay alimony. Therefore, the appellate court determined that the Former Husband still made significantly more than the Former Wife and that the Former Husband had an ability to pay some alimony. The appellate court then instructed the trial court to determine some amount of alimony for the Former Wife

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Written by: Lenorae Atter, Attorney at Law

Alimony in a Florida divorce can be challenging to understand because it factors in multiple things, including the need for alimony and an ability to pay alimony. Once the divorce is final and alimony is awarded, the case is not really over. As a Jacksonville divorce lawyer, one thing I have recognized over the years is the repeat client. Unfortunately, while the divorce may be trying, getting someone to pay alimony, even when ordered, can be tricky. The paying party and the receiving party may find themselves back in court for a modification before the alimony is paid in full. A modification can be done when one or both parties have a substantial change in circumstance (i.e. health issues, long-term unemployment, etc.). Another factor that impacts alimony is cohabitation of the receiving party. Co-habitation is factor because it is believed that if you are living with someone, then you are receiving some financial support from them, thus impacting your need for alimony.

Often, clients will ask me whether the court will consider the co-habitation of the paying party as well. This is more common when the new girl/boyfriend or husband/wife makes a decent income. Recently, the Florida appellate court decided that such a relationship is a fact to be considered in determining whether the paying party has an actual ability to pay alimony as previously ordered. First, the appellate court in a recent case found that the alimony paying former husband could not rely on his co-habitation for purposes of modifying alimony. Morrell v. Morrell, 2D10-303 (Fla. 2nd DCA March 14, 2012). However, the court then ruled that his live-in companion’s financial assistance could be considered in determining whether he had an ability to pay alimony. The reason is that the Former Husband’s companion’s financial contributions more than likely reduce the Former Husband’s actual monthly expenses, thus decreasing his financial burden.

Written by: Lenorae Atter, Attorney at Law

Alimony is on the forefront of many state law changes, including Florida. In the last two years, Florida has modified alimony provisions to make it less likely for permanent alimony to be awarded. While those changes have occurred, there is still a rising push to modify the laws even more to make it harder for permanent alimony to be awarded in a Florida divorce case. As a Jacksonville divorce lawyer, I see both sides to the argument given that my job is to represent my client, whether the husband or the wife. In so doing, it is vital that my understanding for the law be efficient enough to make arguments for and against alimony, which also makes it easier for me to properly prepare my clients for what may arise in his or her case.

The state’s interest in changing alimony has taken a national spotlight in recent months, including an article in The New York Times entitled, “In Age of Dual Incomes, Alimony Payers Prod States to Update Laws.” In 2012 it is more commonplace for both spouses to work during a marriage and the uprising in Florida and other states leads to the question of whether permanent alimony is really necessary in the 21st century. Permanent alimony was originally designed to protect the homemaker and caregiver upon the dissolution of the marriage because often women gave up their education and careers to provide such services in the home. The idea was that women should not suffer monetarily simply because they took care of the children and the home for 20 years.

Now, there are many individuals that feel permanent alimony is no longer necessary because more and more households have two working spouses. The request for changes in the Florida alimony laws is to make it harder for permanent alimony to be awarded in this type of environment because the necessity is lacking. The bill currently presented in the Florida House is one that takes some of the discretion from the Florida judges and puts limitations on the award of alimony. Presently, a lot of discretion rests in the hands of judges to make decisions regarding alimony and the bill will take much of that discretion away.

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