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How The Court Determines Types Of Alimony In A Divorce

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As a divorce attorney in Plantation, Florida, I oftentimes receive inquiries asking how a Court determines alimony in divorce proceedings.

Relying heavily on the recent changes to Florida Statute 61.08, I have created this “cheat sheet” for my clients to understand the different types of alimony a Court can award in a divorce.

What is Alimony?

Alimony is court-ordered support paid by one spouse to another after they are separated.

How is Alimony Determined?

It is a misnomer that alimony is always granted to the wife. Regardless of the requesting spouse’s gender, a Court will consider awarding alimony only after considering the answers to four well-defined questions:

  1. The Recipient’s Need and the Payor’s Ability to Pay (baseline question)
  2. Duration (how many years?)
  3. Amount (how much?)
  4. Application of the Statutory Factors

Florida Statute 61.08 clearly lays out the Statutory Factors the Court shall consider.

  1. Standard of living established during the marriage
  2. Duration of the marriage
  3. Age, physical & emotional condition of each party
  4. Financial resources of the parties both non-marital and marital assets & liabilities;
  5. The earning capacities, education levels, vocational skills, & employ ability of  the parties and when applicable the time necessary to acquire education or training to find appreciate employment
  6. The contribution of each party to the marriage homemaking, child care & career building of the other
  7. Responsibility towards the parties’ minor children
  8. Tax consequences to the parties
  9. All other sources of income such as investments
  10. Any other factor necessary to do equity and justice between the parties.

As mentioned previously, the one common question considered in all types of alimony is whether the recipient spouse has a NEED and whether the payor spouse has the ABILITY to pay.

A Court must make this baseline factual finding as to both need AND ability to pay before considering the other criteria.

As a result, a Court should not grant alimony where both parties have substantially similar needs and abilities to pay (i.e. both parties are similarly aged Doctors with comparable incomes).

Of note, parties requesting alimony oftentimes lose sight of “need” vs. “want”.

The purpose of alimony is to even the playing field and not for one party to provide the less wealthy party with the ability to enjoy every single lifestyle perk (i.e. massages, spa days, designer clothing, etc.) available before the divorce.family law attorney lyons snyder collin

What are the Different Types of Alimony?

Another change as a result of Florida Statute 61.08 is the codification of four distinct types of alimony:

  1. Permanent Periodic Alimony
  2. Rehabilitative Alimony
  3. Bridge the Gap Alimony
  4. Durational Alimony
  5. Temporary Alimony
  6. Lump Sum Alimony

The appropriate alimony to be awarded will be contingent on whether the marriage is considered a long-term, moderate-term, or short-term marriage.

In the past, the Courts considered moderate-term marriages as “gray area” marriages, leading to confusion and disproportionate rulings between Judges.

Now, Florida Statute 61.08 eliminates the discussion of “grey area” marriages and clearly defines the parameters for a Judge to consider before awarding alimony.

For purposes of determining alimony, there is rebuttable presumption that a:

  1. SHORT-TERM marriage is a marriage having a duration of LESS THAN 7 YEARS
  2. a MODERATE-TERM MARRIAGE having a duration of GREATER THAN 7 YEARS but less than 17 YEARS
  3. a LONG-TERM MARRIAGE is a marriage having a duration of 17 YEARS OR GREATER

Prior to Florida Statute 61.08, a moderate-term marriage was generally accepted to be greater than 7 years but less than 15 years (not 17 years).

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PERMANENT PERIODIC ALIMONY

Florida Statute 61.08 clearly defines when a Court should award Permanent Periodic Alimony.

The purpose of Periodic Permanent Alimony remains to provide for the needs and requirements of a considerably less wealthy spouse as defined, only in part, by their standard of living.

To the surprise of many, the standard of living is not a “super-factor” which should be given more consideration than any other factor.

The Court should also rely on all the criteria applied prior to Florida Statute 61.08, including the parties earning ability, age, health, education, the duration of the marriage, and the value of the parties estates.

Notwithstanding the criteria above, Florida State 61.08 specifically lays out the presumptive baseline guideline on whether a Court should award permanent alimony.

More specifically, Permanent Alimony MAY be awarded following a marriage of a LONG DURATION, following a marriage of MODERATE DURATION IF SUCH AN AWARD IS APPROPRIATE upon consideration of the factors (listed above), or following a SHORT-TERM MARRIAGE IF THERE ARE EXCEPTION CIRCUMSTANCES.

As such, in MOST situations, it is reasonable to follow this rule of thumb:

  1. Long-Term Marriage = Presumption for Permanent Periodic Alimony
  2. Moderate-Term Marriage = No Presumption For or Against Permanent Periodic Alimony
  3. Short-Term Marriage = Presumption Against Permanent Periodic Alimony

REHABILITATIVE ALIMONY

The purpose of rehabilitative alimony is to provide financial support to the receiving spouse so he/she can become completely self-supporting (i.e. tuition, vocation license, etc.).

Florida Statute 61.08 reads: “Rehabilitative Alimony MAY be awarded to assist a party in establishing the capacity for self-support through either: (1) the redevelopment of previous skills or credentials; or (2) the acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.”

Florida Statute 61.08 specifically states that, “In order to award rehabilitative alimony, there must be a specific and defined rehabilitative plan which shall be included as a part of any order awarding rehabilitative alimony.”

The specific rehabilitative plan (i.e. attend night school at Nova Southeastern University beginning in the Spring Semester) shall be included in the Court’s Order.

Such specific plan should thwart parties who casually orally declare their intentions to “go back to school” for the sole (and impure) purpose of requesting additional alimony.

BRIDGE THE GAP ALIMONY

Florida Statute 61.08 finally provides a uniform definition for Bridge the Gap Alimony.

Bridge the Gap Alimony may be awarded to assist a party by providing support to allow the party to make a transition from married life to single life.

This type of alimony is to provide support to a party with legitimate short-terms needs (i.e. security deposit on a new apartment, lease a car, etc.)

The Court may not award Bridge the Gap Alimony for more than two years; Bridge the Gap Alimony is non-modifiable.

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DURATIONAL ALIMONY

Florida Statute 61.08 fashioned Durational Alimony as another option for the Courts to apply to provide for an equal playing field for the parties.

The purpose of Durational Alimony is to provide for a party with economic assistance for a set period of time following a marriage of SHORT or MODERATE duration.

The Court can award Durational alimony for as many years as the parties were married (i.e. the Court can award the receiving spouse up to ten years of Durational Alimony for a ten year marriage.)

This does not necessarily mean, however, that the Court must award the receiving spouse Durational alimony for the total length of the marriage.  This type of alimony simply permits the Court the option of awarding Durational alimony up to the length of a marriage.

Seemingly, the Florida Legislature created Durational Alimony as a lesser substitute to Permanent Periodic Alimony where Permanent Periodic Alimony is inappropriate.

Durational Alimony can also be viewed as a middle ground between Permanent Periodic Alimony and Bridge the Gap Alimony

TEMPORARY ALIMONY

Although not considered one of the four distinct types of alimony, Temporary Alimony is commonly requested immediately after filing for divorce and before a final judgment is reached.

Although not a rule of thumb, the wife is typically the party to request temporary alimony.

Similar to other forms of alimony, the standard for an award of Temporary Alimony is based on the recipient’s NEED and payor spouse’s ABILITY to pay.

Of note, Temporary Alimony awards can be made retroactive to the date when the petition for temporary assistance was filed if the need existed at the time and the payor spouse had the ability to pay.

The fact that the Court can grant Temporary Alimony is significant as, depending on the back-log of cases on the Court’s docket, such request may not be heard for months after filing for divorce.

Temporary Alimony can require one spouse to pay for the other spouse’s attorney’s fees, if warranted.

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