Alimony

In Florida, there are several different types of statutorily prescribed awards of alimony.  Generally, an alimony award is based on one former spouse’s need, the other former spouse’s ability to pay, and the standard of living last shared by the parties during the intact marriage.  Unlike child support, for which there are statutorily prescribed guidelines, there are currently no guidelines or formulas to determine the amount or type of a potential alimony award.  There has been, however, a significant push with the Florida legislature in recent years to implement some type of alimony guidelines.  Currently, there are numerous statutory factors a court is to consider in determining the type, amount, and duration of an alimony award, if any.  There are effectively seven types of alimony which are briefly explained below.

This type of alimony is support paid by one spouse to the other spouse during the pendency of a dissolution of marriage action.  If awarded, and unless extended by the court in a final judgment of dissolution of marriage, the final judgment terminates the temporary alimony award.

This type of alimony is awarded to assist a former spouse by providing financial support for a short-term to allow that party to make the transition from being married to being single.  It cannot exceed two years in duration.  It terminates upon the death of either party or the remarriage of the recipient spouse.  It cannot be modifiable in amount or duration.

This type of alimony is intended to help an impecunious spouse to establish the capacity for self-sufficiency through the redevelopment of previous skills or credentials (e.g., to redevelop skills that may have been lost during a marriage such as where typically the wife was a stay at home mom for a sufficient period of time) or to acquire education, training or work experience necessary to develop employment skills or credentials (e.g., such as necessary funds to enable the impecunious spouse to go to college and obtain a degree).  To obtain such an award the requesting spouse must provide the court with a specific and defined rehabilitative plan which usually (but not always) requires the expert testimony of a vocational evaluator or similar expert.  Such an award may be modified or terminated based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan.

This type of alimony is awarded when permanent periodic alimony (see below) is inappropriate.  It is intended to provide the impecunious spouse with economic assistance for a specific period of time following a marriage of short duration (a marriage of less than seven years), moderate duration (a marriage greater than seven years but less than seventeen years), or following a marriage of long duration (a marriage of seventeen years or greater) if there is no ongoing need for alimony on a “permanent” basis.  This type of alimony terminates upon the death of either party or remarriage of the recipient former spouse.  Unlike bridge-the-gap alimony, durational alimony may be modified or terminated based upon a substantial change in circumstances albeit the length of the award may not be modified except under “exceptional circumstances” and the length may never exceed the length of the marriage.  Although the duration of this type of alimony is based upon the particular circumstances of each case, as a general “rule of thumb” it appears that courts award durational alimony based on one-half of the length of the marriage.

This type of alimony is awarded to provide the needs and necessities of life as they were established during the intact marriage for a spouse who lacks the financial ability to meet his or her needs and necessities of life following the divorce.  This is the type of alimony that lay persons typically believe “goes on forever” but such is a misnomer.  Permanent periodic alimony can always be modified based on a substantial change in either parties financial or other circumstances.  It terminates upon the death of either party or the remarriage of the recipient spouse, and it could terminate or be modified based upon the recipient spouse’s engaging in a “supportive relationship” as that phrase is defined by statute and case law.  In short-term marriages, permanent periodic alimony can only be awarded if there are exceptional circumstances.  In moderate term marriages, permanent periodic alimony can only be awarded if there is clear and convincing evidence such is needed after consideration of all of the statutory factors for alimony.  Following long term marriages, permanent periodic alimony is presumed.  That said, in awarding permanent periodic alimony a court must find that no other form of alimony is fair and reasonable under the circumstances of the parties.

A lump sum alimony award for support purposes is a one time lump sum award and is usually (but not always) awarded in lieu of periodic (i.e. monthly) alimony payments or some other type or duration of alimony.  It is generally not awarded by the courts.  Technically, lump sum alimony is not a type of alimony but rather a means or manner to accomplish the ends or goals of other forms of alimony such as permanent periodic or rehabilitative alimony.  It requires proof of special or unusual circumstances or a special necessity and where other forms of alimony are unavailable or are inappropriate.  Lump sum alimony can be an award of real property (such as a former spouse’s half interest in the marital home), a one-time payment where the payor spouse has a history of not paying support, or where it will benefit both parties by severing all ties between them post-divorce, among other circumstances.  The circumstances are determined on a case-by-case basis.

Generally, an award of alimony particularly alimony paid in periodic payments is taxable to the recipient spouse and deductible by the payor spouse.  Such is usually the case especially when the alimony terminates upon the death of the payor spouse.  However, the parties can agree or the court can designate that the alimony payments (or a portion thereof) be nontaxable to the recipient spouse and nondeductible by the payor spouse.  Obviously, the particular circumstances of the parties factors into such a determination and designation.

Clearly, many factors and considerations are involved in whether alimony is to be awarded at all or if it is to be awarded, the type and duration of the alimony.  Here at Jonathan S. Root, P.A.,  with our over sixty years of combined legal experience we will discuss and consider all of the types of alimony and considerations necessary to help you determine whether alimony is appropriate at all and if it is what type(s) of alimony and the duration thereof that would be “in play”.

Update: As a result of the 2017 Tax Cuts and Jobs Act, for divorce decrees and agreements entered into after December 31, 2018, alimony payments will no longer be taxable to the recipient or deductible by the payor. However, decrees and agreements entered into prior to January 1, 2019, shall continue to be controlled by the prior law (“grand fathered” in) inclusive of modification thereto unless the modification agreement provides the new rule shall apply.