alimony can be forever

Your Marriage Might Not Last, but Alimony Could Be Forever

 

In Florida, alimony is not automatic and is not ordered in every divorce. However, alimony is not a rare occurrence. Alimony is defined as one spouse’s payment to the other spouse, either through an agreement between the couple or under a court order. Alimony is also known as spousal support or maintenance, but they essentially mean the same thing. The goal of spousal support is to ensure that both spouses can meet their financial needs.

 

While in the past, alimony was typically given to wives. However, most states have changed their divorce laws to be gender-neutral. According to Reuters, alimony is still heavily weighted towards husbands paying wives, with only about 3 percent of the approximately 400,000 alimony recipients being male.

 

What Are the Different Types of Alimony in Florida?

There are essentially five types of alimony in the state of Florida:

  • Temporary Alimony. Temporary alimony can be awarded to a spouse who requires financial support while the divorce is ongoing. The spouse who asks for temporary alimony must clearly have a need for support, and the spouse being asked for alimony must have the means to pay the alimony during the divorce.

 

Temporary alimony allows the lower-earning spouse to remain financially stable throughout the divorce. Otherwise, the lower-earning spouse might not be able to even pay for legal assistance or for the necessities.

 

Temporary alimony ends when the divorce is finalized. At that time, another type of alimony may or may not be awarded, regardless of whether temporary alimony was awarded.

 

  • Bridge-the-Gap Alimony. Bridge-the-gap alimony helps the receiving spouse meet legitimate short-term needs while the receiving spouse transitions from married to single.

 

As an example, the spouse with less money and assets may use bridge-the-gap alimony to pay bills while the marital home is on the market ahead of the sale or while the receiving spouse is looking for full-time employment.

 

Bridge-the-gap alimony in the state of Florida cannot exceed two years. If the receiving spouse remarries, or if the paying spouse dies, within that two-year period, bridge-the-gap alimony is terminated.

 

  • Rehabilitative Alimony. Rehabilitative alimony is the most common type of alimony in the state of Florida. Courts award this type of alimony when the lesser-earning spouse can reasonably become self-supporting but requires time and financial assistance to acquire training, skills, education, or work experience.

 

Before the award of rehabilitative alimony, there must be a well-defined plan for the court to review that clearly shows how the receiving spouse will become self-supporting. Rehabilitative alimony will have a specific end date.

 

  • Durational Alimony. Durational alimony is somewhat like rehabilitative alimony in that there will be a specific time limit set for the spouse to receive alimony, but a rehabilitative plan is not necessary.

 

Durational alimony is generally given to a lesser-earning spouse who requires financial assistance for a specific period of time but does not qualify for permanent alimony. Durational alimony may not last longer than the length of the couple’s marriage.

 

  • Permanent Alimony. Permanent alimony is relatively rare, usually reserved for the spouse who needs financial assistance and is unable to become self-supporting. When the receiving spouse is older, disabled, or caring for a special needs minor child, then permanent alimony may be considered appropriate, particularly for a marriage of a long duration.

 

Bridge-the-gap alimony, durational alimony, rehabilitative alimony, and permanent alimony all end when the receiving spouse remarries or the paying spouse dies.

 

Could Alimony Last Forever in Florida?

Permanent alimony is less common than it once was in the state of Florida. Yet, as the law currently stands, a spouse in a long-term marriage—more than 17 years—could potentially receive permanent, lifetime alimony (assuming other factors are present as well).

 

Permanent alimony lasts until one of the parties dies or until the recipient remarries. Florida’s SB 1796 could potentially alter permanent alimony, along with making other sweeping reform measures to Florida alimony laws.

 

Durational alimony could be modified or terminated when there is a substantial change of circumstances and cannot be awarded unless the parties have been married for more than three years. Durational alimony may also not exceed 50 percent of the length of a marriage lasting 3-10 years, 60 percent of the length of a marriage lasting 10-20 years, and 75 percent of the length of a marriage lasting 20 years or longer.

 

The amount for durational alimony is the lesser of the amount determined by a court to meet the receiving spouse’s reasonable needs or an amount that does not exceed 35 percent of the difference between the net incomes of the parties.

 

If the paying spouse reaches full SS retirement age while the durational alimony is being paid, his or her alimony obligations may be terminated if:

 

  • The paying spouse files and serves notice of retirement one year before the proposed retirement date
  • The receiving spouse must contest the notice within 20 days, or the obligation ends
  • The receiving spouse may the notice on the following grounds:
  • The receiving spouse’s income would be less than 130 percent of the single-person household poverty guidelines in the U.S.
  • The receiving spouse is permanently disabled (physically or mentally) or is unable to be self-supporting.
  • The receiving spouse is a full-time caregiver (in-home) to a permanently mentally or physically disabled child of the parties.
  • The receiving spouse would be unable to meet their basic needs without the alimony (utilities, housing, transportation, food)
  • The specific marital settlement agreement prohibits termination or modification of alimony.

 

During a contest of the alimony payments, the court will also consider many factors, including:

  • Length of the marriage
  • Financial resources of the receiving spouse
  • Sources of income available to the receiving spouse
  • The sacrifice of time and leisure required of the paying spouse to continue paying alimony
  • Health and age of the paying spouse
  • Terms of the marital settlement agreement.

 

For a number of years, proponents of “alimony reform” have made efforts to pass new legislation changing the structure of alimony. The new proposed laws would apply to open cases as of that date and to new cases filed thereafter. However, the new rules can be applied to previously closed cases that allow for modifications. Because of this, there will likely be a rise in requests for alimony modifications across the state. The proposed laws also include new calculations for determining alimony obligations, most particularly those that extend beyond retirement age.  The language of the proposed laws will presume both parties will have a lower standard of living post-divorce and that the receiving spouse’s supportive relationships have a larger influence on requests to terminate payments.  Nothing has passed as of the writing of this article.

 

Is There Any Way to Avoid Paying Florida Alimony?

Obviously, few spouses looking at paying alimony want to do so. If your goal is to never pay alimony, you would need to consider the following:

 

  • Have a prenuptial or postnuptial agreement in place that spells out issues like alimony
  • Help your spouse work toward success in the workplace throughout your marriage
  • Watch your spending and overall standard of living during the marriage; if you wildly spend money throughout your marriage, the judge will consider the standard of living of your spouse with a goal of maintaining that standard of living post-divorce.
  • Show your spouse’s earning potential during alimony discussions
  • Make sure your spouse’s budgetary needs are not over-inflated on financials
  • Maximize child custody time with your children since Florida courts will look at which parent has the largest share of child responsibility following the divorce
  • Consider trading assets for Florida alimony
  • Build a cohabitation clause into your settlement agreement
  • Leverage your home to avoid paying alimony

 

How is Alimony Determined in the State of Florida?

Either spouse can request support. The court will evaluate whether the requesting spouse needs financial assistance while considering the following:

 

  • The length of the marriage
  • The age, emotional health, and physical health of each spouse
  • The standard of living established during the marriage
  • The financial resources of each spouse—liabilities, assets, and property
  • The earning capacity of each spouse, taking into consideration employability, educational level, and vocational skills
  • The contributions of each spouse to the marriage, including homemaking, childcare, and education and career-building of one spouse to the other
  • The parental responsibilities to minor children of the marriage
  • Tax consequences to each spouse
  • All sources of income available to each spouse
  • Any other factor the court deems necessary

 

How is Alimony Calculated?

Florida alimony is calculated based on the paying spouse’s ability to pay and the receiving spouse’s need. A guideline provided by the American Association of Matrimonial Lawyers calculates alimony by taking 30 percent of the paying spouse’s gross annual income minus 20 percent of the receiving spouse’s gross annual income. In short, it will first be determined whether the spouse requesting alimony has a provable need, then whether the other spouse has the financial ability to satisfy that need.

 

Can Alimony Be Awarded Without Divorce?

The state of Florida does not recognize legal separation. Despite this, alimony could be warranted when a couple is separated. Alimony under these circumstances acknowledges the continuation of the marriage, the possibility of reconciliation, and the continued right of the paying spouse to participate in the other spouse’s estate.

 

Spouses have a legal duty to provide financial support to one another; therefore, it can be required even before a divorce or during a separation. This financial support must come close to what has been established during the marriage. There is no requirement that the couple physically lives apart before the court can order alimony or that the party paying alimony is at fault for the separation.

 

Does Adultery Affect Alimony?

Florida’s courts may consider charges of adultery by either spouse when considering alimony. If the allegations of adultery are credible and provable, the judge may consider how the affair impacted the marital funds of the couple. As an example, if one spouse was involved in a long-time affair, spending marital funds to provide an apartment, living expenses, or trips with the other person, then alimony can be calculated using adultery as a factor.

 

Can Florida Alimony Be Modified?

There are few ways to avoid a petition for modification of alimony unless the couple has agreed in writing that neither will ask for a modification or review for modification. The exceptions to modification of Florida alimony include bridge-the-gap alimony, which is non-modifiable. A spouse awarded durational alimony can potentially have the alimony modified as far as amount but not related to the length of the alimony. A modification or termination of alimony can be asked for when the receiving spouse fails to comply with the rehabilitative alimony plan while he or she is receiving payments of alimony.

 

How Does Alimony Affect Taxes?

If you are paying or receiving alimony in Florida, it is important to understand how alimony could affect your taxes.

 

As of January 1, 2019, alimony payments are not deductible from the income of the paying spouse and do not have to be included in the income of the receiving spouse if the alimony was determined under a divorce or separation agreement executed after December 31, 2018.

 

This also applies to a divorce or separation agreement executed before December 31, 2018, which was modified after December 31, 2018, if that modification changed the terms of the alimony payments or stated that the alimony was not deductible by the paying spouse or includable in the income of the receiving spouse.

 

How Ayo & Iken Can Help with Your Alimony Issues

Alimony—particularly permanent alimony can be a highly contentious aspect of divorce. The outcome of an alimony award can have a long-lasting impact on each spouse’s finances, even though alimony payments are not meant to be punitive in nature, but rather a recognition that one spouse has more resources and skills to support themselves going forward. The highly-skilled, compassionate attorneys at Ayo and Iken are ready to aggressively protect your rights throughout your divorce.

 

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