Alimony is the least predictable aspect of divorce. Judges have wide latitude in determining whether financial support is merited in your case. Even with our experience as divorce attorneys, we cannot say for sure whether alimony will be awarded or its amount and duration. However, we can give a fair idea based on your circumstances, and help you plan for whichever way the court may rule or assist you in resolving the issue by agreement.
The law holds that both parties contributed to the marital estate, and that it is not fair for one party to enjoy the same lifestyle after divorce while the other struggles to make ends meet. The court’s decision that one party should pay alimony to the other is based on two primary factors: one party’s need for financial assistance and the other’s ability to pay. Alimony can be awarded to either a husband or a wife.
The judge has considerable discretion in awarding spousal support. The primary criteria are disproportionate incomes (e.g., he’s an executive, she’s a clerical worker) and length of the marriage, but there are other considerations. Alimony is rarely awarded in shorter marriages of 7 years or less but is commonly awarded in marriages of 17 years or more. Marriages in the “gray area” between are the hardest to predict. Other criteria the court will consider are the requesting party’s age and health, education and earning capacity, and contributions to the marriage and child-rearing.
Spousal support is determined after equitable distribution of assets, when the judge can gauge whether it is needed and how much the higher-earning spouse can pay. If awarded, it may be:
- Rehabilitative alimony — the receiving spouse has a specific plan, such as completing a college degree
- Bridge-the-gap alimony — the support is granted for a period of two years so the spouse can establish independence and adjust from married life to single life
- Durational alimony – intended for “economic assistance” for a specific period of time, not to exceed the length of the marriage, but can be for a shorter period of time.
- Permanent alimony — until death or remarriage to meet the needs and necessities of life as established during the marriage.
- Lump sum alimony — in special circumstances; cases such as a spouse with special needs
Despite language in an antenuptial agreement (commonly known as a “Prenup”), or in a post-nuptial ageement for that matter, where one party has agreed to be awarded no alimony or assistance with attorney’s fees in the event of a dissolution of marriage or separation, the Court DOES have the power to award alimony or attorney’s fees on a temporary basis while such an action is pending.
See Belcher v. Belcher, So. 2d 7 (Florida 1972).
While most attorneys will require a retainer prior to taking any case, it is important to know that you can still request financial assistance for both household bills and other needs, as well as reimbursement or assitance with future attorney’s fees (and court costs), during the pendency of your divorce or action for alimoy connected with a divorce (separation needs), despite having waived the right to financial assistance in a pre or post nuptial agreement!
The Law Office of Summer R. Nichols is experienced with handling this exact situation and is ready to represent you and assert your rights under Florida law.
Beware that if you are a payor spouse, lump sum alimony, unlike other types of alimony, is NOT tax deductible to you. If your tax consequence would be huge, consider a different alimony scheme!
Sure, you may recognize the familiar rule that alimony terminates upon death or remarriage. However, alimony can also be terminated or modified when a former spouse begins cohabitating with another individual. However, cohabitiation is only grounds for a modification of alimony when that cohabitation is “financially beneficial” — meaning that the boyfriend or girlfriend of the former spouse is not only living with the former spouse, but helps to pay the household bills, etc., thereby reducing the cohabititing spouse’s “need” for alimony.
A recent appellate court case reaffirmed the financially beneficial cohabitation rule. See Murphy v. Murphy, 3D11-1604 (Fla. 3rd DCA October 3, 2012), where the Court found the former wife was in a supportive relationship, but received no economic support from her boyfriend, and therefore denied the Former Husband’s request to modify alimony.
In fact, the fact that a former spouse is receiving enough alimony to support a live-in boyfriend or girlfriend could be grounds to go ahead and reduce the alimony based on a showing of less need on the part of the cohabitating spouse!
This case courtesy of Michael Mattson, mediator