Breaking up a family into two separate families sometimes requires that one spouse provide financial support to the other spouse for a period of time. This financial support is called spousal support and is also known as “alimony.”
In any divorce, the court judge may provide for alimony to either spouse, which may be one or more of the following types:
Your judge will address any request for spousal support after your assets and debts have been split. He or she will be concerned with determining if there is an entitlement to alimony and how much is appropriate.
The first step for your judge is figure out if either of you needs financial support. The second step is to determine if the person who will provide spousal support has an ability to pay it. If there is a need and the other spouse has an ability to pay, the third step for the judge is to determine the type of spousal support and the amount.
FACTORS JUDGES CONSIDER
A court judge is required to consider a list of factors when determining the appropriate type and amount of spousal support as follows:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, childcare, education, and career building of the other party.
(g) The responsibilities each party will have regarding any minor children they have in common.
(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties.
TYPES OF ALIMONY AVAILABLE
DURATIONAL ALIMONY – may be awarded for a specific period of time if there is no ongoing need for permanent support. The purpose of is to provide a spouse with economic assistance for a set period of time after a short-term or moderate-term marriage, or following a long-term marriage if there is no ongoing need for support on a permanent basis. It terminates when either of you dies or when the person receiving the alimony remarries. The amount is modifiable and the length is not. Also, it cannot last longer than the length of the marriage.
For example, if you were married for 10 years, the length of a durational alimony award cannot exceed 10 years. In my experience, many court judges seem to award durational alimony for somewhere around half the length of a marriage.
PERMANENT ALIMONY – may be awarded if no other form of alimony is fair and reasonable under the circumstances of the spouses. It is used to provide the needs and necessities of life to a former spouse as they have been established during the marriage. This type of spousal support is presumed to be appropriate in long-term marriages. It terminates upon the death of either spouse and is modifiable.
REHABILITATIVE ALIMONY – may be awarded to assist a spouse in establishing the capacity for self-support through either the redevelopment of previous skills or credentials, or the acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.
BRIDGE-THE-GAP ALIMONY – may be awarded to assist a spouse in making a transition from being married to being single. It is designed to help a spouse with identifiable, short-term needs.
Generally, any alimony award cannot leave the spouse paying the spousal support with significantly less income than the net income of the spouse receiving the alimony.
Over the last 20 years, there has been at least one significant economic downturn. Because of tough economic times, if is difficult if not impossible for any divorce settlement or decision to provide enough money to each spouse to maintain the standard of living that they enjoyed while they were married.
Reality tells us that no matter what happens in a divorce case, the two family units created by the divorce cannot maintain the same lifestyle.
There are no alimony guidelines in Florida. In my experience, alimony awards a generally somewhere between 20% and 40% of a payor's income. For example, if your spouse's income is $5000 per month, you might expect to receive somewhere between $1000 and $2000 per month.
Florida marriages are broken out into categories based upon length as follows:
- Less than 7 years is a “Short Term” marriage
- More than 7 years and less than 17 years is a “Medium Term Marriage”
- More than 17 years is a “Long Term” marriage
The marriage length is measured from the wedding day until someone files for divorce.
A spousal support obligation is not dischargeable in bankruptcy.
LUMP SUM OPTION
Any award of spousal support may be satisfied by one, lump-sum payment. Of course, the total alimony amount should be reduced to its present value.
A court judge may order the spouse paying alimony to maintain a life insurance policy to secure an alimony obligation. Requiring a paying spouse to maintain life insurance requires the following:
- A necessity for the insurance;
- The paying spouse must be insurable;
- The cost of the insurance must be reasonable;
HEALTH INSURANCE AND UNCOVERED MEDICAL EXPENSES
A spouse may be ordered by a court judge to pay a reasonable amount for medical insurance for his or her spouse as part of an alimony award. In Orlando, a court must set a specific sum to pay for health insurance.
IMPUTATION OF INCOME
Before imputing income to a spouse, a court is required to make findings regarding a spouse's work history, occupational qualifications, and the current job market in the community. Those findings must be supported by competent, substantial evidence.
Florida court judges will award nominal alimony when it finds that one spouse has a need for spousal support and there are insufficient resources at the time of the final hearing to meet the needs of the requesting spouse.
NEED AND ABILITY
The criteria to be used in establishing a spouse's need for spousal support include the spouses' earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during the marriage, and the value of the spouses' estate.
Net income, net worth, past earnings, the value of the spouses' capital assets, and any other existing support obligation is the criteria to use in establishing a spouse's ability to pay spousal support.
A court judge may not include income based upon cohabitation unless it finds that either the companion made contributions that reduced the living expenses or the spouse made contributions to support the live in companion.
RETROACTIVE TO DATE OF FILING
A spousal support award will be retroactive to the date of filing for divorce where one spouse had the need and the other spouse had the ability to pay during the divorce and failed to do so.
AUTOMATIC PERCENTAGE AWARD OR FORMULA
Any alimony award that includes an automatic percentage of some future income is improper. For example, a court judge awarding a wife 12% of her husband's taxable income in the future is not proper.
Another example would be a spousal support award to a wife of 25% of any gross bonus her husband receives in future years when wife receives spousal support and child support.
AUTOMOTIC INCREASE OR DECREASE
An alimony award cannot provide for an automatic future change based upon some anticipated occurrence of a future event. If there is proof that a spouse receiving alimony will experience a change in his or her financial position in the future, an automatic reduction in alimony would be proper.
NO SAVINGS COMPONENT
Alimony was not designed to help the spouse receiving alimony accumulate savings. The purpose of alimony is to pay for a spouse's current needs not to help him or her accumulate cash in savings.
TERMINATION WHEN LIFE CHANGES
When either spouse dies, alimony terminates. In addition, when the spouse receiving alimony remarries, alimony stops. With rehabilitative alimony, if the spouse receiving rehabilitative alimony fails to comply with the rehabilitative plan, alimony may be terminated or modified.
VOLUNTARY PAYMENTS DURING SEPARATION
Voluntary payments by one spouse to the other spouse does not automatically prove that the spouse paying the voluntary payments has the ability to pay spousal support.
It is error to include children's expenses in the calculation of alimony and child support. This is called “double-dipping,” or counting the same expenses twice. The children's expenses must be backed out of a spouse's financial affidavit in determining alimony.
REMARRIAGE TO SAME SPOUSE
When a husband and wife get divorced and then subsequently remarry, our court judges are handling each situation based upon its unique facts and circumstances.
For example, where a husband and wife divorced, then remarried, then divorced again, the court judge found that the husband had committed fraud and treated both marriages as one continuous marriage.
In another case, the Florida Supreme Court treated two separate marriages as one continuous marriage when the first marriage lasted nine years and the second marriage lasted two years, and there was a short interval between the two marriages.
EQUALIZATION OF INCOME
The purpose of alimony is not to equalize the spouses' incomes. If a Husband earns $250,000 per year and his Wife earns $25,000 per year, a court judge is not simply going to award the Wife $112,500 per year in spousal support. If, after considering need and ability to pay, along with all of the statutory factors, an alimony award results in the spouses' income being equal, that alimony award may be justified.
CONTACT A SKILLED, AGGRESSIVE, COMPASSIONATE AND EXPERIENCED ORLANDO SPOUSAL SUPPORT LAWYER TODAY
Spousal support can be complicated. It is important to have a guide who can help you identify your rights and responsibilities that you might overlook trying to do it yourself. Having an attorney who focuses their practice 100% on family law and divorce is essential because you need a professional who understands everything about divorce. The anger, the fear, the betrayal, and the anxiety about your financial future.
Divorce and divorce-related situations is all we do here at Leap Frog Divorce. We're ready to help you today, and we have affordable options.