Alimony

Alimony in your Sarasota divorce case

Alimony is often the most difficult issue to settle in a Florida divorce.  Why?  

First, there is no set formula for determining alimony in Florida.  By not having a formula, alimony awards may vary substantially on a case by case basis.  

Second,  there are four types of Florida alimony: Bridge the Gap; Rehabilitative; Durational; and Permanent.  (Plus temporary alimony). As a result determining the appropriate type of alimony leads to disputes.  

Finally, when awarding alimony, the judge is required to consider 10 factors, after having determined that there is a need for alimony and the ability to pay.  The tenth factor is literally “any other factor necessary to do equity and justice between the parties.”  As a result, the court is forced to consider arguments for each factor, and then how to weigh the factors, in reaching a final alimony determination.  

Table of Contents

“The standard of living established during the marriage is not a ‘super factor’ when determine alimony”

Table: Types of Alimony in Florida with Key Features

Type of AlimonyMaximum DurationMost commonly awarded forGrounds for awardingModifiable?Terminates
Bridge the Gap2 yearsShort-term marriagesWhen assistance is needed to transition the party from being married to being singleNo1. and 2.
DurationalLength of the MarriageModerate-term marriagesTo provide a party with economic assistance for a set period of time following marriageYes, but usually only as to amount, not term1. and 2.
PermanentA long timeLong-term marriagesTo provide the needs and necessities of life as they were established during the marriage for a party who lacks the financial ability to meet such needs and necessitiesYes1.
RehabilitativeCompletion of rehab planMarriages of all durationsTo assist a party in establish the capacity for self-supportYes1. and 3.

Table Key: How Florida defines marriages based on years

Short-term marriages are less than 7 years.

Moderate-term marriages are 7 to 17 years.

Long-term marriages are 17 years or longer.

“Permanent alimony is presumed to be the correct type of alimony for a long-term marriages”

Table Key: Grounds for terminating alimony (match the number with the table above)

  1. Death of either party, remarriage of party receiving alimony, modification case in which the court finds that the facts support the termination of alimony, including a finding that the person receiving alimony is in a “supportive relationship” (a marital like relationship).

  2. Completion of awarded term of alimony, which can be up to 2 years for Bridge the Gap Alimony, and equal to the number of years for the marriage in the case of Durational Alimony.

  3. Completion of Rehabilitation Plan, or finding of noncompliance with Rehabilitation Plan.

My 7 rules for thinking about Florida alimony

1.  Florida law requires the court to look at each party’s income and expense, when determining whether alimony should be paid.  

However, in  my experience, the court tends to focus more on the disparity of incomes between the parties.   The implicit assumption is that the spouse being asked to pay alimony will eventually figure out how to incorporate alimony into his or her monthly budget. 
 
The exception to this rule of thumb is when a spouse has truly extraordinary and unavoidable expenses.  For example, a big monthly car payment will not likely effect the court’s award of alimony, while the court likely would consider significant and ongoing medical expenses resulting from a disability.

2.  If you are the person who needs alimony, ask yourself whether your spouse really has the ability to pay you. People often get divorced because of financial problems.  For example, the unexpected loss of a high paying job.   Sometimes these types of changes are temporary.  Sometimes they are not.  Often by the time divorce is considered, a couple may have been living beyond their means for an extended time – racking up unsustainable debt in the process.  Before you incur even more debt litigating the issue of alimony, do a “reality check.”  Can your spouse really pay you, based on the way things are now.

3.  The longer the marriage, the greater the potential for a significant award of alimony – both in dollars and duration.  In fact there is a statutory “presumption” in favor of permanent alimony for long term marriage.  (If alimony is appropriate).

4.  The “standard of living” established during the marriage is an important statutory factor in awarding alimony.  However, in most cases the alimony awarded does not duplicate the prior standing of living for the spouse receiving alimony.  

Why not? The reason is that many couples spend close to their entire combined income on a month to month basis.  So, after the divorce it is not possible for either party to keep the standard of living established during divorce.  (For example, if the combined income of a couple during the marriage is $160,000, then no matter how that $160,000 is split after the divorce, each party’s “share”  is always going to be less than $160,000).    The cases interpreting this factor say, that after the divorce, “one party should not be left in abundance, while the other party is left in poverty.”

5.  The court typically will not equalize incomes after the divorce.  Usually the spouse paying alimony will end up with more total income.  Call it the “golden goose” principal.”  

6.  The court has discretion to impute income to a party paying or receiving alimony.  Impute in this context means to treat a party as having more income than they actually have at the current time.  If you are the person asking for alimony, you should expect to transition to best job in the areas given your training and experience.  If you are the person being asked to pay alimony, suddenly losing your job, or not getting your usual bonus, will be treated skeptically by the court.  

7.  There are different statutory presumptions based on the length of the marriage.  The years of marriage are measured from the date of marriage to the date a petition for dissolution of marriage is filed.  Keep in mind these presumptions in mind, and plan accordingly.  For example, you will be in a much stronger position, in regard to request for alimony, if the length of your marriage is over seventeen years.  So, you may wish to delaying filing for divorce if the length of your marriage is at that sixteen year/seventeen year dividing point.

Factors considered by the court when awarding alimony

Under Florida’s alimony statute, the court first determines whether one spouse has the need for alimony, and  then determines whether the other spouse has the ability to pay alimony.  If the answer to both these questions is “yes,” the court is required to consider the following factors in determining the amount, duration, and “type” of alimony:

(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, child care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to 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.

The link to the statute is here:  Section 61.08, Florida Statutes.

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