Articles Posted in Alimony

Written By: Lenorae Atter, Attorney at Law

494522_man_and_woman.jpgAlimony in a Florida divorce is defined by statutes for qualification purposes, but defined by judges and case law for purposes of determining the amount of alimony. However, there are questions in Florida divorces regarding men receiving alimony when they have been the homemaker and stay-at-home-dad during the marriage because, unfortunately, judges may still have gender biases. In Jacksonville area divorces, I have not yet seen a judge deny alimony to a man who met the statutory requirements showing a need for alimony; however, that does not mean it does not happen. Biases sadly play into every sector of family law though most of the biases are more subconscious than blatant. Men, however, are entitled under Florida Statutes, to receive the same consideration for alimony as women.

The reason this issue has arisen in 2012 is due to a recent appellate case, Gulledge v. Gulludge, 2D11-472 (Fla. 2nd DCA February 29, 2012). In this case, the couple was married for 30 years (long-term under Florida Statute 61.08) and the Wife was the primary breadwinner making approximately $60,000 per year. The Husband did not make more than $15,000 per year during the course of the marriage and at the time of divorce was making $9,000. The Husband also had a GED and a history of taking care of the children and doing the homemaking. In the divorce, the Husband was fairly and accurately requesting to receive permanent alimony (as available through Florida Statute if he can also show a need). The parties did not settle their case at mediation, so the case went for the judge to ultimately decide. The judge listened to the testimony and evidence and ruled in favor of the Wife finding that that Husband did not have a need for alimony and that he was underemployed.

The trial court’s decision was appealed and the appellate court reversed or overturned the trial court’s decision. The appellate court ruled that the Husband had demonstrated a need for alimony, but also agreed with the trial court, that he was under employed. However, no ruling by either the trial court or appellate court stated what the Husband should be earning with his GED and 30-year work history (e.g. minimal work with homecare and child keeping). The appellate court basically said that there was a need for the Husband to have alimony and that at least $1 of permanent alimony should be awarded in case the Husband could not find gainful employment, then he could have it modified.

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667996_porquet_guardiola.jpgAlimony in Florida is based on a number of factors, including need for alimony and the other party’s ability to pay it. Even if these factors can be proven, there is always the questions of, “How much will I get or pay?”; “How will it get paid?”; and, “Will it get paid?” Answering these questions is not always the easiest thing for Florida divorce lawyers, including those in the Jacksonville and North Florida region because each judge has their own way of answering these questions. Without a State mandatory calculation for alimony, ultimately the decision rests with the judge if the parties cannot otherwise agree.

First, the question of qualifying for alimony. There are multiple forms of alimony in Florida, including bridge-the-gap [between married and single life]; rehabilitative; durational; permanent periodic; and lump sum. All of which have their own qualifying definitions under Florida Statute 61.08. Each are based on numerous factors, including length of the marriage, contribution to the marriage, lifestyle during the marriage, etc.

In addition, factors such as need and ability to pay are qualifying determinants.

Same-sex marriage in Florida is not recognized, which has posed a number of questions to Jacksonville and other Florida divorce attorneys about how to handle to such matters. The State of Florida originally initiated a statute defining that same-sex marriage would not be considered legally authorized or recognized in the state of Florida. That, not being enough, in 2008, Floridians voted by 62% to institute Amendment 2 to the Constitution, which gave us the language of Article I, Section 2, defining marriage as, “the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

As other states, like Vermont, have enacted the right for same-sex couples to forge in the bonds of matrimony, that marriage is not given full faith and credit in states like Florida. In accordance with Florida Statute 741.212, such marriages that are valid elsewhere are not considered valid if the couple decides to reside in Florida. Therefore, a legal marriage is not legally dissolved in Florida. This means that if the marriage is valid in another state and not recognized where the couple resides, for the marriage to be properly dissolved, the couple must move to a state where their marriage is legal. In places like Vermont, the residency requirement before filing for divorce is one year as opposed to six months in Florida. This can put a strain on the individuals if they were to have the marriage dissolved effectively. However, there may be arguments to say that since you reside in a State where the marriage is not recognized that there are no real reasons to have it properly dissolved because in essence, the marriage is void. In that situation though, the problem would be in dividing property, assets and debts, which can be divided equally or fairly in a divorce.

This leaves a great deal of difficulty for same-sex couples and could potentially be construed as unconstitutional and interfering with ones right to travel, which has been upheld as a constitutional right by the U.S. Supreme Court, beginning with U.S. v Guest, 383 U.S. 745 (1966).

1092822_bathroom_1.jpgAn award of alimony or spousal support in a Florida divorce does not mean that the award will be valid under any and all circumstances or that it is not modifiable. Support obligations are, unless waived by agreement, always modifiable in Florida. As a Jacksonville divorce lawyer, clients have contacted me regarding their support obligation because their income has changed, the other party has remarried, or a variety of other things have arisen since the divorce. In Florida, if there is a substantial change in circumstance, alimony may be reduced or terminated based on that change (Florida Statute 61.14). If the receiving party is living in a new relationship setting and that relationship could be deemed supportive in nature, based on the Florida law, then the court may terminate or reduce alimony in accordance with that new support.

In order to reduce or terminate an alimony obligation, the State puts the burden of proof on the obligated paying party. The court may reduce or terminate, upon making findings that since the divorce was finalized, granting the alimony, receiving spouse has lived with another individual in what could be considered a supportive relationship. In determining whether such relationship is, in fact, supportive, the paying party is responsible for proving, beyond a preponderance of the evidence that the following relationship and supportive-like behaviors exist:

1. Whether the party receiving support is with another person and they are presenting their relationships to others a married couple by engaging in activities similar to that of a marriage or supportive relationship(e.g. referring to one another as “husband” and “wife”; taking the last name of the other; this is “our” family, etc.).

1237883_computer_room_2.jpgDivorce cases in Florida often have an alimony component, which husband and wife do not always understand. As a Jacksonville divorce lawyer, I often educate my clients on how alimony is determined and calculated based on their case facts and whether the alimony can be changed or modified in the future. Florida does not have a formula for divorce, but the Florida statutes along with prior Florida cases provide a format by which alimony may be determined. For example, alimony may be awarded in a divorce case where the parties have been married for 20 years and the wife has not worked full-time in 15 of the 20 years because she has been homemaker, mother and wife. If the husband makes roughly $150,000 per year and the division of assets still leaves the wife with a need to pay her bills and living expenses, then the court may award the wife permanent periodic alimony (i.e. permanent and paid monthly) if the husband has the ability to pay, which he most likely would based on the above example. The question then becomes, if alimony is awarded and the husband loses his job, then how does that impact his financial obligation to pay alimony? Can alimony be modified? The simple answer is yes, but a substantial and involuntary change in circumstance must be presented to the court along with new financial information.

Recently, a Florida appellate court heard a case involving a husband that made $175,000 per year at the time of the divorce and the wife was awarded $5,000 per month in spousal support after all necessary factors were determined by the court. The husband later was laid off from his job and eventually found a new job that paid $66,000. The husband attempted to modify his alimony payment based on his involuntary change in circumstance. However, the trial court found that he should have saved during the time that he knew he was getting laid off (approximately 16 months) in order to pay for his alimony obligation. Also, the trial court found that the husband was using his savings to pay his living expenses while he looked for a new job and the court found that he also could have used his savings to pay his alimony obligation. The trial court ultimately reduced his alimony to $3,500 per month, which constituted 81% of his net income. The appellate court heard the case and reversed the decision based on prior Florida case precedents.

The appellate court basically found, based on Florida law, that the husband could not pay an amount of support that does not allow him to support himself. This goes to the basic ability for alimony, which is not only a need for alimony, but an ability to pay. Second, the appellate court found that the husband could not be required to incur debt in order to pay alimony. Also, the appellate court found that the husband could not be required to deplete or sell his assets to pay alimony to the wife. Furthermore, they found that the husband did not have an obligation to save money to meet his future alimony obligations.

701012_writing_a_check_1.jpgA concern regarding child support and alimony, in Florida, is that once it is ordered, the other party will not pay. As a Jacksonville, Florida divorce and family law attorney, my advice is to clients is generally the same regarding this issue, once alimony and/or child support are ordered by the court, we should do an income deduction order. Such orders can be done only after the order establishing support is entered by the court. Once that is done, the court can enter an income deduction order, which lays out the payment schedule for the paying party. In addition, the income deduction order is sent directly to the employer of the responsible party so that the wages can be garnished.

Establishing child support and alimony in Florida is based on statutory guidelines. The calculation for child support is based on the income of both parties and their pro rata share of the total income of both. Credits may be given for such things as the child’s health insurance and daycare or if a parent has a prior child support obligation. Alimony does not have such a calculation in Florida, but is based on need and ability to pay.

Once the court determines how much will be owed in child support or alimony, the court may enter an income deduction order at the request of a party. The payments made by garnishment are not made directly to the receiving party, but to the State depository. In addition to the employer receiving the income deduction, the State is also provided a copy so that an account may be set-up for both the paying and receiving parties. The money is then garnished each month, in accordance with the order, for the length of time established in the order.

641084_money.jpgFlorida divorces involving alimony issues have given rise to new legislation over the last few years and will continue into the near future. The alimony debate in Florida is based on a number of factors, including the lack of an alimony calculation that is state mandated in determining the amount of alimony to be paid. According to a press release on Market Watch, Anderson Cooper is reportedly doing a show on Monday, January 9, 2012 highlighting the issues of Florida alimony; however, the report that came out about the show seems to have things reported incorrectly and in an effort to decrease emotional responses, I thought, as a Florida divorce lawyer, that I would debunk some of the myths that allegedly will be reported on the show.

First, the idea that men are the ones that suffer from alimony payments. In Florida, like most of the country, men and women work. If a woman makes reportedly more money than her husband and they divorce, then she may be on the hook for paying alimony.

Second, alimony is awarded without regards any provisions other than a party makes more money than the other spouse. Again, this is not true. In Florida, the factors used in determining alimony include, but are not limited to, the length of the marriage, the contribution of both parties to the marriage, the marital lifestyle, the ability for the asking party to earn relatively similar income to that of the paying spouse, the employment history of the parties, the education history of the parties, the NEED for alimony, and the ABILITY to pay alimony. The court does not arbitrarily and without regard for incomes and expenses simply declare that a Husband will pay the Wife permanent alimony at 70% of the Husband’s income until he dies. In Florida, getting permanent alimony requires the asking party to show that the marriage is a long-term marriage (over 17 years); that the asking party has an ongoing need for permanent alimony (e.g. disability, lack of education, inability to earn, etc.); etc.

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1043017_success1_srb.jpgFlorida divorce and child support laws dictate what may be paid in alimony and child support based on the facts of each case and incomes of the parties. Often, the paying party does not like the idea of writing a monthly check and the receiving party does not like worrying about whether the check is actually in the mail. Florida divorce and child support clients often ask their lawyer if there is another option and thankfully for both sides, the answer is, “Yes.” Florida Statute61.1301

An income deduction order basically garnishes the wages of the paying party per the payment agreement or order that was entered with the court. For example if you are ordered to pay child support at $300 per month and alimony at $100 per month, then the order will reflect when those payments will be made and to whom. If there is an income deduction order, then wages are garnished before you actually receive your paycheck and the money is automatically sent to the State Disbursement Unit.

Just as the paying party has an account, the receiving party has an account with the State Disbursement Unit and that account has to be set-up by the receiving party. The payments will then be made by check or they can go into an account, which the receiving party will receive a debit card for and that money can then be accessed like it’s own bank account.

162243_loading_zone.jpgDivorcing parties often separate before their divorce is finalized. When parties separate, even if by agreement, it does not mean that simply not having a court order means that a party is not entitled to alimony and/or child support. Spousal support is based on a need for support and the other party’s ability to pay, often this need is immediate and the party is entitled to receive funds from the date of the separation. Also, child support is designed to keep a child in the same lifestyle s/he would have if the parties were still living together, therefore, the need for child support is established at the time of the separation.

Florida Statute 61.09 allows for the determination of child support and alimony to be determined back to the date of separation. Florida Statute 61.09 states as follows:

“If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.”

701012_writing_a_check_1.jpgDivorcing in Florida after 16 years of marriage is considered a long-term marriage when determining alimony. Basically, the idea that has been passed down by the Florida legislature is that when parties have been married that long, if there is a need for alimony then that alimony may be needed permanently because the parties had their roles for so long and the needing party will most likely not have time to build a career to be at the same marital lifestyle or even close to it without alimony. The idea is that if a couple chose to have one spouse be a homemaker, then that individual will most likely not be able to go into the workforce and make equal to the spouse that has worked the length of the marriage.

Florida Statute 61.08 provides details for determining alimony and the length of the alimony. For a long-term marriage, permanent periodic alimony may be awarded if the requesting party can prove a need for alimony and prove that the other party has an ability to pay the alimony. Florida Statute 61.08(8) defines permanent periodic alimony as follows:

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 dissolution of marriage. Permanent alimony may be awarded following a marriage of long duration, following a marriage of moderate duration if such an award is appropriate upon consideration of the factors set forth in subsection (2), 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 in accordance with s. 61.14.

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