Does Cheating Cost Extra Under Florida’s Alimony Statute? Types of Alimony

As you will recall, the last time, the factors to be considered in awarding alimony were outlined and discussed. A question that is frequently asked by individuals is whether or not adultery is a factor to be considered in awarding alimony. Section 61.08(1) 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.” Well we know that Florida is a “no fault” divorce state, yet the statute states that the Court may consider the adultery of either spouse in determining whether to award alimony. How do those features correlate?

Considering Adultery in Alimony Awards

First it is important to consider the words “MAY consider”. This implies that the Court has discretion in this area. In considering the adultery, the Court will generally look to see if there was detriment to the non-adulterous spouse.

Generally Courts in Florida have interpreted this to mean that there has been a financial detriment to the non-adulterous spouse. For example, if the adulterous spouse took his or her girlfriend or boyfriend on vacations, bought them jewelry and paid for an apartment for the girlfriend or boyfriend, these would cause financial detriment to the non-adulterous spouse as marital assets that could have been used for the benefit of the marriage have been wasted or dissipated for non-marital purposes.

It is important to note that using marital funds to keep the Marital Home in tact (ie. to pay the mortgage, keep the home in good repair, etc.) in the event that one spouse moves out is not considered dissipation. There are a myriad of cases that address this issue and it is impossible to discuss all of them here. However, it is good general advice to note that if you are having an affair, it may be wise not to use marital funds to support or further the adulterous relationship.

Types of Alimony Available

As for the types of alimony, Florida defines several in Section 61.08, Florida Statutes, including bridge-the-gap alimony, rehabilitative alimony, durational alimony and permanent alimony. We will define and examine the features of each of these forms of alimony addressed in the Statute:

Bridge the Gap Alimony

This type of alimony has been in existence in the State of Florida but now the legislature has more specifically addressed its components in the statute as opposed to just relying on case law to define its terms and boundaries. Bridge-the-Gap alimony is just as what it sounds like - it is 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:

1. The alimony payments may not exceed 2 years in duration.
2. It is a non-modifiable award of alimony which means basically that the payor spouse can not seek to terminate or reduce the amount or term of alimony and that the receiving spouse can not seek to increase the term of the award nor can he or she seek to increase the amount of the award.
3. It terminates upon the death of either party or upon the re-marriage of the receiving spouse.
4. The award is justified to the Court by showing legitimate, short-term needs of the receiving spouse.

Rehabilitative Alimony

Unfortunately, in today’s society, the word “rehab” or “rehabilitation” has a rather negative connotation and presumes that someone has an addiction issue. However, rehabilitative alimony is not in any way suggestive of paying to help cure any addiction. Rather, rehabilitative alimony is awarded when the receiving spouse either needs to re-develop his or her previous skills or credentials (ie. When the parties first married, the receiving spouse was a hairdresser.

However, when the couple decided to have children, the hairdresser stopped doing hair all together to be a stay-at-home parent. Now several years have elapsed and the hairdresser’s license has expired and he or she needs to sharpen their skills to comport to today’s standards).

Rehabilitative alimony is also awarded when the receiving spouse needs to acquire education, training or work experience necessary to develop appropriate employment skills or credentials. Many people think of this as a traditional stay-at-home parent who has never worked outside of the home and needs training of some sort in order to get a greater than minimum wage job. However, it can also mean for example that the receiving spouse always wanted to become a nurse and now wants to go to school to acquire the proper training and licensing necessary to do this or the same nurse was an LPN and was working towards an RN but gave that up during the marriage and now wants to complete the training as an RN. By completing the requirements for becoming RN would presumably allow the receiving spouse to have a greater earning potential than he or she would have as an LPN.

The other key components to rehabilitative alimony are:

1. There must be a specific and defined rehabilitative plan. In other words, it is not good enough for the requesting spouse to come to Court and say, “I want to go back to nursing school and need alimony so I can support myself while I go to school.” Instead the requesting spouse needs to have a specific plan to include where he or she wants to go to school, the duration of the educational requirements program, the details and requirements of the said program(s), the cost of such program, what the steps are post education (ie. State Testing, etc.) in order to earn the credentials sought, the expected earning potential with the additional education as opposed to what is being earned by that spouse now and/or what can be earned by that spouse now, etc. It must be a detailed plan that the Court can base the award upon.
2. This form of alimony IS MODIFIABLE if:
   
   • There is non-compliance with the proposed rehabilitation plan upon which the Court based the award of rehabilitative alimony.
   • The receiving spouse completes the plan prior to the previously anticipated date upon which the order was based.
   • There is a substantial change in circumstances

Durational Alimony

This is a newly named form of alimony to Florida’s spousal support lineup. It was added to address circumstances in a short term (less than 7 years) or moderate term marriage (greater than 7 years but less than 17) years and to apply when permanent alimony is not appropriate. The key factors to receiving an award of durational alimony per Section 61.08, Florida Statutes are:

1. It is for a set period of time.
2. It is to provide economic assistance to parties of a short or moderate term marriage.
3. The duration of this form of alimony MAY NOT exceed the term of the marriage.
4. It is otherwise modifiable based upon a “substantial change of circumstances”
5. It terminates upon the death of either party or the remarriage of the receiving party.

Since this a newly created form of alimony, there may be quite a bit of litigation surrounding the application of this provision.

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). However, the statute indicates that permanent alimony may also be awarded in moderate term marriages “if such an award is appropriate upon the consideration of the factors stated in section 2". Section 2 was discussed in the last article and includes the consideration list of 10 factors.

The statute also provides that permanent alimony may even be awarded in short term marriages if there are “exceptional circumstances”. The true features of permanent periodic alimony are:

1. It is permanent. In other words, payments continue until the death of either party, the remarriage of the receiving spouse or upon a court order modifying or terminating same.
2. It is generally tax deductible to the payor spouse and taxable income to the receiving spouse.
3. It is modifiable if there is either:
   
   • A substantial change in circumstances or
   • It is determined that the receiving spouse is in a supportive relationship.

Thus, the important issue about permanent alimony is that there is a presumption in favor of permanent alimony for long term marriages, but may be awarded in moderate or short term marriages if the circumstances warrant. It should also be recognized that more than one (1) form of alimony may be awarded in any case. Finally, it should also be noted that alimony can be ordered to be paid periodically (usually in monthly payments) or in lump-sum.

Next time we will examine what constitutes a “substantial change in circumstances” that would warrant a modification of alimony and what constitutes a “supportive relationship.”