Alimony is money that one spouse pays to the other for support during the divorce process or for some period of time following a final divorce. Courts generally require the higher earner—whether that is the husband or the wife— to assist the lower earner in maintaining the marial lifestyle for at least some period of time following a divorce.
Types of Alimony Available in Florida
Florida law provides for five different types of alimony: temporary, bridge-the-gap, rehabilitative, durational, and permanent. A judge may award these different types of alimony in any combination that seems fair under the circumstances. Alimony can consist of periodic payments from one spouse to the other, or less commonly, a single lump-sum payment. Spouses can always agree between themselves on different terms and conditions of alimony, including giving up alimony enirely, usually in exchange for some other valuable type of property.
Courts often award temporary alimony—also known as alimony "pendente lite," meaning while the divorce is pending, when one spouse requires financial support during the divorce process. This type of award automatically ends once the divorce becomes final.
Bridge-the-gap alimony begins after the divorce is final but is very short term, with a maximum duration of two years. The purpose is to help the recipient spouse meet legitimate and identifiable short term needs—for example, bridge-the-gap alimony might provide living expenses while the recipient spouse is waiting for a house to sell, or while the recipient spouse is completing a retraining or educational program to allow for improved employment prospects.
Rehabilitative alimony has the specific purpose of assisting the recipient in acquiring education or training necessary for appropriate employment. A spouse requesting rehabilitative alimony must submit a plan outlining the amount of money and time required to complete the plan.
A court might award durational alimony if other types of alimony are insufficient to meet a spouse’s needs. The maximum term of durational alimony is the length of the marriage--in other words, if you were married for ten years, you can't receive durational alimony for any longer than that.
If the recipient spouse's economic need is likely to be permanent, an alimony award may be permanent as well--but a judge awarding permanent alimony must always state the reasons that another form of alimony would not be fair and reasonable under the facts of the case. The purpose of permanent alimony is to provide for the financial needs of a spouse who lacks the ability to become self-supporting, at a standard of living as close as possible to the marital standard.
Factors in Need and Ability to Pay
The court begins making decisions on a request for alimony by considering the facts of the case to determine whether the spouse requesting alimony meets the standard to show the alimony is necessary. If there's a need for alimony, the court has to also determinate whether the other spouse has the ability to pay. Unless there are some kind of exceptional circumstances, a court won’t award alimony if it would leave the paying spouse with significantly less net income than the recipient.
A judge who finds both need and ability to pay next must consider all relevant factors in deciding what type of alimony to award and for how long. Florida law says that these factors 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.
A court may also consider whether either spouse committed adultery during the marriage, and under what circumstances. Courts are most likely to take adultery into account when one spouse's affair caused the other financial harm. For example, if one spouse bought lavish gifts for a paramour using marital funds, the court might factor that into the alimony award.
Florida law applies certain presumptions with regard to length of marriage and eligibility for permanent alimony. Following a marriage of at least 17 years, a judge may award permanent alimony if such an award is appropriate in light of the above factors. After a marriage of between 7 and 17 years, there must be clear and convincing evidence of appropriateness to justify the award. After a marriage of less than 7 years, permanent alimony is appropriate only in exceptional circumstances. A marriage lasts until the spouses actually file for dissolution, not when they informally separate or stop living together.
Modification or Termination
Unless the spouses have made a specific written agreement about when alimony ends or under what circumstances it can be modified, when and how an alimony award can be modified depends on the type of alimony.
- A bridge-the-gap award is not modifiable under any circumstances.
- A court might modify rehabilitative alimony if the recipient fails to comply with the rehabilitative plan or completes the plan early.
- Rehabilitative alimony, durational alimony, and permanent alimony are all modifiable if there has been a substantial change in financial circumstances for either spouse; however, except in extraordinary circumstances, durational alimony can only be modified in amount, not in duration, and even in exceptional circumstances the duration can never exceed the length of the marriage.
Both durational and permanent alimony end automatically if the recipient remarries or if either spouse dies. A court can also modify or terminate an award of permanent alimony if the recipient lives with an unrelated person in a “supportive relationship.” The spouse asking for a modification on this basis must prove the supportive nature of a relationship. The court will find consider the following:
- the extent to which the two people in question have held themselves out as a married couple—for example by using the same last name, using a common mailing address, referring to each other as “my husband” or “my wife”
- the length of time they have lived together at a permanent address
- the extent to which they have pooled assets and income, or otherwise exhibited financial interdependence
- the extent of mutual support between them, including support for each other’s children, regardless of legal obligation
- performance of valuable services for each other, or for each other’s company or employer
- whether the two have worked together to create or enhance anything of value
- whether they have purchased property together, and
- evidence that the two have either an express or implied agreement regarding property sharing or support.
Tax Effects of Alimony
Periodic alimony payments are usually taxable to the recipient and tax-deductible by the payer. Couples can sometimes take advantage of this situation by structuring alimony payments to create the best possible tax scenario for both spouses. The IRS will treat a lump-sum payment as a property distribution, and there will be no tax consequences to either spouse.
Florida Statutes Chapter 61: DISSOLUTION OF MARRIAGE; SUPPORT; TIME-SHARING Sections 61.071; 61.08 61.14