Alimony. It’s Complicated

William G. Morris, Esq.

Alimony can be a big part of a divorce case. Alimony has changed a lot through the years.

Courts in the United States inherited the concept of alimony from the common law of England. Under English common law, any property owned by a wife and anything that the wife gained during marriage was generally placed under the control of her husband. In “trade,” a duty was imposed on the husband to support his wife with the necessities of life.

Divorce was controlled by the Church and was generally unavailable. The Church would grant a legal separation but not divorce. The husband had a continuing duty to support his wife, even after legal separation was granted. The Matrimonial Causes Act of 1857 took jurisdiction over divorce from the Church and transferred it to civil courts.

Divorce required a guilty spouse. Guilt was most often adultery or cruelty. Alimony was used as both compensation for an innocent non-adulterous wife and a financial penalty for a wrongdoing husband. Alimony was a pittance. It was available if the wife would face extreme hardship, even when she was not the guilty party.

Fault-based alimony was the early practice in Florida. An innocent spouse could be awarded alimony as a form of damages. Florida Statutes initially limited alimony to fault and courts were barred from awarding alimony to an adulterous spouse.

Florida’s legislature weighed heavily into the alimony field with the 1971 Dissolution of Marriage Act. The new law made Florida the second state to adopt no-fault divorce. No-fault divorce not only eliminated fault as the basis for divorce, but also such defenses as mutual fault, forgiveness, and entrapment. Divorce would be granted if the marriage was “irretrievably broken,” and that meant at least one party claimed the marriage was broken beyond repair.

No-fault divorce did not eliminate alimony. It changed the focus from punishing a wrongdoer and benefiting an innocent spouse to calculating need by one and ability to pay of the other. Those two factors continue to be the starting point for alimony arguments in Florida courts. The judge must first decide if one party has need and the other ability to pay. The findings must be supported by competent and substantial evidence.

If the judge decides a requesting party has crossed the evidentiary threshold, the alimony door is opened.  The judge is then  required by statute to consider and weigh each of eight statutory factors: duration of the marriage, standard of living during the marriage, age and physical/mental condition of each party, resources and income of each party, earning capacity, education and employability of each party, contributions to the marriage, responsibilities regarding minor children, and a catch-all, “any other factor necessary for equity and justice.” The judge may give greater weight to some factors over others as the judge deems appropriate but must make written findings as to each.

The statute adds a degree of complication by mandating judges include written findings addressing all factors in their alimony decisions. But it gets even more complicated as the statutes carve alimony into different types.

Bridge-the-gap alimony can be awarded to help a party transition from married to single life. It is generally awarded when the recipient is working and just needs some help to adjust. Maximum duration is two years.

Rehabilitative alimony is to assist with training or education so the recipient can get an appropriate job. To qualify, the recipient must present a specific training, educational, or development plan and the maximum term is five years.

Durational alimony may be awarded for a specific period of time, based largely on length of the marriage. Durational alimony may not exceed fifty percent of the length of a short-term marriage (less than ten years), sixty percent of a moderate term marriage (ten to twenty years)  or seventy-five percent of a long-term marriage (twenty years or more). Length of an alimony award can be extended by clear and convincing evidence (much more difficult than greater weight of evidence for regular duration) under the statutory factors plus consideration of age, a disability impairing ability for self-support, limitation of financial resources on the recipient’s ability for self-support, disability of the recipient, and extent of the recipient serving as caregiver for a disabled child.

A judge cannot award alimony that leaves the payor with significantly less net income than the net income of the recipient. Alimony is also capped at thirty-five percent of the difference between net incomes of the payor and recipient.

Statute defines net income as gross income less (1) taxes, (2) FICA and Medicare deductions, (3) mandatory (not voluntary) retirement payments or union dues, (4) health insurance, (5) court ordered child support for other children actually paid and (6) court ordered and paid spousal support for a previous marriage. Missing from the calculation are living expenses of the payor.  That means the only important living expenses in the alimony argument are the expenses of the person asking for alimony as those establishing need. That can be quite upsetting to the payor who wants the judge to consider his or her living expenses and how alimony may make it impossible to pay them.

Over the past fifty years, Florida’s legislature has repeatedly tried to bring order to alimony. Judges are now mandated to consider multiple factors and make written findings on each. Amount and length of alimony awards are capped. Mandating factors and limits have brought some order to alimony disputes, but they have also made the cases more complicated.

William G. Morris is the principal of William G. Morris, P.A. He and his firm have represented clients in Collier County and surrounding areas for over 35 years. His practice includes litigation, personal injury, estate planning, probate, business law, construction law, landlord-tenant law, condominium and homeowners’ associations, divorce, real estate closings and debt collection and defense.

The information in this column is general in nature and not intended as legal advice.