Sunday, February 24, 2019

Alimony Different Ways

Law Matters

Alimony has a long history. Its genesis can be traced as far back as the Babylonian Code of Hammurabi almost 4,000 years ago. Its origin was intended to take care of the former wife, since women had limited rights and ability for self support. The modern concept developed during the 16th Century in English Ecclesiastical (church) courts. Divorce was not common, but men were ordered to financially support their wife. In fact, divorce in the 16th Century was little more than a legal separation and the marriage was not dissolved because marriage was a sacrament. When a divorce was granted, it was based upon some fault (usually adultery or cruelty).

With separation of church and state in America, there was greater flexibility to adopt statutes dealing with divorce. Even though early divorce statutes were fault based, wives continued to be favored in the alimony context. As states moved toward adoption of no fault divorce, the focus in alimony cases was increasingly on need and ability to pay rather than fault.

Alimony is generically referred to as spousal support. Because spouses have a legal obligation in Florida to support each other during marriage, alimony can be ordered during marriage and is referred to as maintenance when sought without a pending divorce action. When ordered by the court as part of a divorce action, it is referenced as alimony.

Both courts and the legislature have addressed alimony. In 2011, the legislature made its last major revision of Florida’s alimony statute. The changes in 2011 appear to have been the legislature’s effort to bring the statute in line with case law and to clarify certain aspects so that everyone in Florida would be playing from the same and well known rule book. The legislature’s effort was well intentioned, but cases are still developing judicial interpretation and clarification.

The legislature has refused to adopt a formulaic approach to alimony as it has done with child support. That leaves judges with the historical task of analyzing one spouse’s needs and the other spouse’s ability to pay. That analysis usually involves the “needy” spouse producing evidence for standard of living and cost of same during marriage, the income available to the “needy” spouse and the other party’s income and expenses to show ability to pay. The alimony statute mandates the court consider all relevant factors and alimony awards can be reversed if the award does not address all of the statutory factors.

The statute mandates that judges consider (a) the standard of living established during the marriage; (b) duration of the marriage; (c) age and physical and emotional condition of each party; (d) financial resources of each party, including non-marital and marital assets and liabilities distributed to each as part of the divorce action; (e) earning capacity, educational level, vocational skills and employability and, if applicable, time necessary for either party to acquire sufficient education or training to find appropriate employment; (f) contribution of each party during the marriage, not limited to financial contribution but specifically including contributions to homemaking, child care, education and career building of the other party; (g) responsibilities each party will have with regard to any minor children they have in common; (h) tax treatment and consequences of any alimony award; (i) all sources of income available to either party; and (j) any other factor necessary to do equity and justice between the parties.

Right to alimony can be waived by agreement between the parties, but right to maintenance or spousal support during marriage cannot be waived. A court can always order one spouse to provide temporary support to the other during a divorce action, even if the parties have a prenuptial agreement that waives any claim or right to alimony and support. Such waivers, in Florida, only apply to post divorce support.

The statute provides a wide variety of alimony that might be awarded by the court and specifically provides for alimony during divorce proceedings, known as alimony pendente lite. It also lists six other types of alimony that can be awarded: alimony support during marriage without a divorce action (spousal maintenance); alimony after divorce to ease transition from married to single life (bridge-the-gap alimony); alimony after dissolution to allow a spouse to prepare for self-sufficiency (rehabilitative alimony); temporary post divorce alimony (durational alimony); alimony after divorce until death or remarriage (permanent periodic alimony); and alimony after dissolution in a fixed liquidated amount (lump-sum alimony).

Permanent alimony may be awarded to provide for needs and necessities of life as established during the marriage and/or if party lacks financial ability. If marriage is 17 years or longer, it is considered a long term marriage and qualifies for permanent alimony if the criteria are met. Marriage between seven and 17 years is of moderate duration and alimony in those cases is only appropriate if based upon clear and convincing evidence and the statutory criteria are met. Marriage of less than seven years is considered short term and will only warrant permanent alimony if there are written findings of exceptional circumstances.

Durational alimony is a somewhat new statutory concept. Traditionally, alimony other than permanent had a specific reason. Bridge-the-gap alimony was to help with transition from married to single life. Rehabilitative alimony was to help a spouse become self-supporting (i.e. through education or job training). Durational alimony is a generic form of temporary alimony that is limited only by statute to extend no longer than the term of the marriage. Durational alimony gives judges much more flexibility and can include bridge-the-gap and rehabilitative without necessarily meeting the criteria for those types of alimony.

The statute confirms that bridge-the-gap may be awarded to assist a party by providing support to allow transition from marriage to being single and is designed to assist the party with legitimate identifiable short term needs. Length of bridge-the-gap alimony may not exceed two years.

Rehabilitative alimony under the statute may be awarded to help the party to become self supporting by either redevelopment of previous skills or credentials or acquisition of education, training or work experience. There must be a specific and defined plan included as part of an order of rehabilitative alimony. Unlike bridge-the-gap alimony, rehabilitative alimony may be modified or terminated based on substantial change and circumstances or non-compliance with the rehabilitative plan or completion of the rehabilitative plan.

Lump-sum alimony is specifically referenced in statute, without any additional criteria for award. Lump-sum alimony has often been used to balance property distribution rather than strictly for support of the divorced spouse.

Alimony cases invariably involve a high level of emotion in addition to the arguments over need and ability to pay. That can lead to protracted litigation and expense and there is a significant basis for both courts and legislatures attempting to provide clarity for resolution. Despite effort of the legislature and the courts, there remains much to argue when alimony is the issue.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

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