Featured Alimony Lawyer

Many marriages end up in divorce in today’s day and age. Divorce can be a product of many things, from simply growing tired of each other after a substantial amount of time together to the divorce of two young adults who married because they thought they were in love, or simply married too young.

In Florida, a spouse cannot deny the other a divorce, as Florida is a “no-fault” state. In a no-fault state, the petitioner only needs to allege irreconcilable differences.

Divorce can be very simple, if there are no children and no major assets and liabilities to divide. Many couples can file for divorce on their own, or hire a paralegal to help them complete the paperwork that needs to be filed.

Throw children or substantial property, assets, liabilities, and retirement accounts into the mix along with a long-term marriage (generally defined as over ten years), and the opinions of what each spouse thinks they are entitled to escalate. It is not so simple as to divide everything in half. There are many situations where one spouse may think he or she is entitled to more of the assets and/or less debt, particularly if there are children involved.

While there are guidelines to deal with many of these issues, especially child support, there are no tried and true guidelines in place for alimony awards. The courts in Florida use the following factors in deciding alimony :
- The standard of living established during the marriage
- The duration of the marriage
- The age and the physical and emotional condition of each party
- The financial resources of each party, the non marital and marital assets and liabilities distributed to each
- When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment
- The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party
- All sources of income available to each party

Any of these “guidelines” are at the discretion of the court – and are determined by the court’s opinion of what each should mean. What defines a long-term marriage? How is the standard of living defined, and how can it continue after divorce? Some of these guidelines cannot be defined in a simple manner – not even the Courts have been able to define some of their own guidelines.

In today’s society, most households are two-income households. Since every couple’s situation is different, and there are situations where alimony may be warranted, let us assume that we are talking about two people who both work, and make close to the same amount of money, or are capable of making close to the same amount of money. (We will not be comparing a doctor spouse to a teacher spouse, but people who may have the same or different professions, but where one spouse’s salary is comparable to the other spouse’s salary).

Often, the court awards alimony to the wife as an equalization factor. This is purportedly assuming that the would-be paying spouse has an ability to pay, and the would-be receiving spouse has a need. If the would-be receiving spouse has worked or is working, there should be no “need” for the would-be receiving spouse, as he or she should be able to procure an income comparable to the would-be paying spouse.

When children leave their parents’ home, are parents obligated to pay their children alimony? Why, then, should a former spouse be obligated to support an adult that is perfectly capable of working and creating the same income as the paying spouse?

Alimony is based on the common law right of a wife to be supported by her husband. In 1979, the Supreme Court removed its limitations to husbands to account for cases in which the wife is wealthier. In today’s double income society, why should either spouse support the other? Alimony was designed to support a spouse that otherwise did not work, and stayed in the home to rear the children.

Most of today’s alimony recipients work outside the home, and have a college education, and can support him or her self.

The Fifth District, in Kennedy, ruled that Canakaris “allowed broad discretion to the trial judge in domestic matters”, and it specifically did not require the equalization of the financial position of the parties. Kennedy states that a Court must use all of the factors outlined in F.S. §61.08 in determining a need for alimony. With this in mind, one would think that it would be very difficult for one spouse to receive an alimony award, but this is not necessarily true. Although the statute (F.S. §61.08) outlines the factors in deciding alimony, it does not define the factors.

The Court needs to specifically define “long-term marriage.” The Second District held that 14 years is a long-term marriage, but in Knoff , the court was determined that it was an abuse of discretion to fail to award permanent alimony after a thirteen and a half year marriage. Based on Cardillo , the court determines a long-term marriage to be 14 years, but cautions that the length of time of the marriage was not the only determining factor in alimony.

In the Fifth District, the court was reluctant to determine a 15 year marriage as long-term and determined it was in a gray area. Several districts consider a 17 year marriage as long term.

How does the Court determine the standard of living during the marriage? It looks at evidence and/or testimony presented by the Petitioner and Respondent, the parties’ financial affidavits, tax returns and other documents showing income for the parties. Oftentimes, one or both parties will misstate their income, will have fudged income tax returns or work in a job that is cash based, such as some food service positions. While one party asserts one standard of living, the other shows less income to try to show a need for alimony.

Although F.S.61.08 provides for “the standard of living established during the marriage,” when you take a double-income family and divide it in half, it is not possible to continue at that standard, for either party. Even if one spouse makes quite a bit less than the other, and is awarded alimony, the standard of living established during the marriage is still not going to be met for both parties.

As to the age and physical and emotional health of each party, this is difficult to determine. A party attempting to win an award for alimony may all of a sudden become emotionally or physically afflicted in an attempt to win an alimony award. Many middle class people do not have health insurance, and even for those that do, it may not cover an elective test to show emotional or physical instability. Payment for these tests places a heavy financial burden on one or both parties, yet these tests are needed when the physical health of a party has not been established over a long period of time before divorce proceedings were filed, or when a physical or emotional problem suddenly arises.

The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party is another one left to the discretion of the Court. It, for the most part, also is based on testimony of the parties. It is too easy for one party to state that they put all the work into the homemaking, child care and education of the children. As to education of the other party, at least there are receipts for that!

“All sources of income available to each party” is another gray area. Again, we must rely on the Court’s discretion. While one party may deny that there are sources of income available, and purposely become under-employed, it is difficult to prove.

In order to weed out the “greed” of parties when it comes to alimony, we need a formula for computing alimony. While a computed formula will not weed out all the greed-seekers and keep them from misstating facts on their financial affidavits or fudging tax returns, it takes much of the wide-open discretion away from the Courts.

Some states have implemented formulas based on income, for alimony. Florida needs to implement calculations that are applied to income after equal, not equitable distribution of assets and liabilities.