Considering Adultery in Alimony Awards
Under Florida's alimony laws, courts may consider either spouse's adultery when determining whether to award spousal support and how much to award. The Florida law that controls alimony states that, “the court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.”
The other factors courts may consider include:
- the financial resources of the spouse seeking maintenance, including separate property and any award of marital property
- all sources of income, including investment income, available to either spouse
- each spouse’s earning capacity, educational history, vocational skills, and employability
- any time and expense required by the spouse seeking maintenance to obtain education and training for appropriate employment
- the marital standard of living
- the length of the marriage
- each spouse’s age and physical and emotional condition
- each spouse’s contribution to the marriage, including homemaking, child care, education, and helping the other spouse build a career
- any tax consequences of the alimony award, and
- the responsibilities each spouse will have for any minor children they have in common.
When the court issues an order for alimony, it must include a statement of facts regarding which factors it found to support the award or denial of alimony.
In considering the adultery, the court will generally look to see if there was a financial detriment to the non-adulterous spouse. For example, if the “guilty” (adulterous) spouse took his or her girlfriend or boyfriend on lavish vacations, bought them jewelry, or paid rent for his or her lover's apartment during the marriage, the "innocent" (non-cheating) spouse will be able to show some financial detriment because marital assets (which could have been used to benefit the family or marriage) were instead wasted for non-marital purposes.
Types of Alimony Available
There are several types of alimony available in Florida, including bridge-the-gap alimony, rehabilitative alimony, durational alimony and permanent alimony.
Bridge the Gap Alimony
“Bridge-the-gap” alimony is just what it sounds like – it’s an award of alimony to allow the receiving spouse to transition from married life to single life. The interesting features of bridge-the-gap alimony are:
- the alimony payments may not exceed 2 years in duration
- it’s a “non-modifiable” award of alimony, which means that the paying spouse can’t seek to terminate or reduce the amount or term of alimony, and the supported spouse can’t ask for an increase in the amount or duration
- it terminates upon the death of either party or upon the re-marriage of the receiving spouse, and
- the award is justified to the court by showing that the supported spouse has legitimate, short-term financial needs.
Rehabilitative alimony is awarded when the receiving spouse needs to develop (or re-develop) his or her job skills or credentials in order to become self-supporting. Let’s say, for example, when a couple was first married, the receiving spouse was a hairdresser. However, when the couple decided to have children, the hairdresser stopped doing hair to be a stay-at-home parent. Now several years have elapsed, his or her skills are outdated, and the hairdresser’s license has expired.
The hairdresser spouse may need some time and financial assistance to re-train and find another job in the field. Rehabilitative alimony is meant to provide the financial support needed in order to allow the supported spouse to get trained and find a job.
The other key components to rehabilitative alimony are:
- The supported spouse must propose a specific and defined rehabilitative plan, which includes: where he or she wants to go to school; information regarding the duration, requirements and cost of the educational program; post-education steps (state testing, for example) in order to earn the credentials sought; and the expected earning potential with the additional education as opposed to what is being earned by that spouse now.
- this form of alimony is modifiable if there is a substantial change in circumstances, the supported spouse fails to comply with the plan, or the supported spouse completes the plan early.
This is a newly-named form of alimony in Florida. It was added to address short-term (less than 7 years) or moderate-term marriages (greater than 7 years but less than 17 years), and to apply when permanent alimony is not appropriate.
Durational alimony is:
- for a set period of time
- to provide economic assistance to parties of a short or moderate-term marriage
- not to exceed the length of the marriage
- is otherwise modifiable based upon a “substantial change of circumstances,” and
- automatically terminated upon either party’s death or the supported spouse’s remarriage.
Permanent Periodic Alimony
This is uniformly the most dreaded form of alimony for a paying spouse and the most desired form of alimony for a receiving spouse. Generally, permanent periodic alimony is awarded in long-term marriages (those over 17 years in duration).
The features of permanent periodic alimony are:
- payments continue until the death of either party, the remarriage of the receiving spouse or upon a court order modifying or terminating support
- it is generally tax deductible to the paying spouse, and taxable as income to the receiving spouse, and
- it is modifiable if there is either a substantial change in circumstances or it is determined that the receiving spouse is in a new, supportive relationship.
It’s important to know that more than one form of alimony may be awarded in any case. If you have questions about alimony in Florida, you should contact an experienced family law attorney in your area.
For the text of the law governing Alimony, see Florida’s Statutes Annotated Section 61.08.