Florida Alimony Law
A discussion of alimony law in Florida
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Length of your Marriage and Alimony
The most important factor for alimony is how long you were married. As the length of the marriage increases, alimony is more likely. But all of the other factors must also support an alimony judgment. The time is counted from your marriage date until the date of the divorce petition.
|The probability you will pay or receive alimony – by number of years married|
Alimony in Florida is one of the more unpredictable areas of family law. Unlike child support, there is not a guarantee of alimony, nor a set amount if alimony is granted by the court. You can have the same set of facts and get 10 different decisions in 10 different courts. Some states have alimony guidelines – but not Florida. Florida alimony statutes require the judge to consider a list of factors when deciding the issue of alimony. Each factor is shown above. Unlike other states, Florida does not embrace the concept of legal separation. That means alimony is rarely, if ever, granted unless a couple is going through the divorce process.
Overview of Alimony in Florida Divorces
When two spouses divorce in Florida, the court may order one ex-spouse to pay the other alimony.Alimony – or spousal support, as it is sometimes called – is typically money paid by one spouse to the other and meant to support and provide for the other spouse for a period of time. The court can fashion an alimony award so that the spouse receiving the alimony can enjoy a standard of living that he or she was accustomed to during the marriage, so he or she can go back to school or complete a job training program, or to provide for his or her needs until he or she can get back on his or her feet following the divorce.
A court has a great deal of discretion in awarding alimony to an ex-spouse. Whereas child support orders are calculated according to a specific, statutorily-defined formula, a court can consider a number of factors in determining whether any alimony is appropriate in a given case and, if so, what type and what amount of alimony should be awarded. An ex-spouse who understands the purposes of alimony and the factors a court considers when awarding alimony can anticipate whether the court in his or her case will award any alimony.
Purpose of Alimony
Consider the example of John and Louise, who were married ten years ago and are now divorcing. During the marriage, John was the sole breadwinner for the couple and his income alone supported the two of them. Over the past few years, John has brought home approximately $30,000 in wages, after taxes and deductions. Once the divorce was filed, Louise asked the court to award her alimony to help her support herself. Because one of the purposes of alimony is to allow ex-spouses to enjoy a standard of living similar to the one they enjoyed during the marriage, a court is likely to award Louise some form of alimony.
Or consider Mark and Sandra. Both Mark and Sandra had professional careers until the couple had children; once their children were born, Mark quit his career to raise the children and allow Sandra to focus on her career. After a divorce petition is filed, Mark decides that, with a little bit of time and education, he can resume his career and begin to support himself again. Because another common purpose of alimony is to help one ex-spouse get into a position where he can begin supporting himself, Mark will also likely be able to get a court to award him alimony.
Punishment, however, is not a recognized purpose of alimony. That is, a court will not award one ex-spouse alimony as a way to punish the other ex-spouse. Similarly, a spouse who is ordered to pay alimony should not view such an order to mean that the court is prejudiced against him or her.
Is Alimony Appropriate?
One of the first questions a court will consider is whether alimony is appropriate in a given case. A court will only award alimony if it finds that there is a need for alimony and there is an ability to pay alimony. If either of these facts is not present, a court will not award alimony. For instance, if Louise has financial resources of her own such that she can provide sufficiently for her own needs, a court may choose not to award her alimony – even if John has the resources to pay alimony. Similarly, if Mark has a need for alimony but a court finds that Sandra’s income is not enough that she can pay an alimony award and provide for her own needs as well, a court is not likely to award Mark alimony, regardless of his need.
What Type of Alimony is Appropriate?
Once it has been determined that an alimony award is appropriate, the court must next determine what sort of alimony ought to be awarded under the circumstances. Florida law allows courts to award five different types of alimony:
- Temporary alimony: Temporary alimony is awarded to one spouse during the pendency of a divorce. Typically, one ex-spouse requests the court enter a temporary alimony award at the time he or she files for divorce. Temporary alimony automatically ends when a court enters final divorce orders; at that time, the court may order another type of alimony be paid.
- Rehabilitative alimony: Where one ex-spouse has the potential to resume a career or begin a profession in order to provide for him- or herself, he or she might request rehabilitative alimony. This type of alimony is meant to allow the receiving ex-spouse obtain job-related education or training so as to assist him or her in providing for his or her own needs. The ex-spouse wanting rehabilitative alimony must submit a detailed plan to the court explaining how much rehabilitative alimony is needed, what expenses are to be covered by the alimony, and how long it will take to complete the education or training. Rehabilitative alimony can end whenever the plan is completed or if the receiving ex-spouse is not compliant with the proposed plan.
- Bridge-the-gap alimony: When one ex-spouse needs temporary support after a divorce is finalized in order to get on his or her feet, a court may award bridge-the-gap alimony. Bridge-the-gap alimony begins after a divorce has been finalized and lasts for no more than two years. Once a court has entered an order for bridge-the-gap alimony, the court’s order cannot be modified.
- Durational alimony: Where an award for bridge-the-gap alimony does not provide for enough support, durational alimony provides temporary support for a longer period of time, depending on the length of the marriage. If Louise seeks durational alimony, she could potentially ask for up to ten years of durational alimony.
- Permanent alimony: Permanent alimony is designed to continue being paid until a court enters an order stopping its payment. If no such order is entered, the permanent alimony continues until either spouse dies or the receiving spouse remarries or enters into a “supporting relationship.” When awarding this type of alimony, the court must write the reasons it feels that permanent alimony is appropriate, fair, and reasonable (as opposed to other forms of alimony).
If the marriage lasted at least 17 years, permanent alimony is appropriate if certain factors (discussed below) are present. If a marriage lasted at least seven years but less than 17, a permanent alimony award can be made if there is “clear and convincing evidence” that such an award is appropriate. For marriages that lasted less than seven years, there must be an exceptional circumstance in order for a court to award permanent alimony.
Factors Affecting Alimony Awards
After deciding that alimony is appropriate, the court must decide on the appropriate type and amount of the alimony award. To do this, the court considers a number of factors that are detailed in the Florida statutes. These factors are designed to assist the court in arriving at an alimony award amount that is fair and appropriate under the circumstances. The factors a court may consider include:
- Financial resources of the receiving spouse: A court is permitted to consider all income sources (wages, commissions, investments, etc.) as well as the separate property of the receiving spouse.
- The earning capacity, educational history, skills, and employability of each spouse: This can assist the court in determining how long it would take for the ex-spouses to reestablish themselves and provide for themselves.
- The length of the marriage and marital standard of living: Alimony is not designed to punish a spouse, nor is it meant to enable one spouse to live better than he or she lived during the marriage. Knowing how the parties were accustomed to living prior to the divorce, therefore, is important in helping the court set an appropriate alimony award.
- Adultery: While a court does not punish one spouse by entering an alimony award, a court can consider whether one spouse engaged in adultery or other wrongdoing in awarding alimony. For instance, if the court found that John had extramarital affairs and that he regularly gave his partners extravagant gifts to the detriment of his wife, the court can use this information in determining whether alimony is appropriate for Louise.
- Child support obligations: If there are children from the marriage, each spouse will have an obligation to provide support for those children. While child support is not the same as alimony, a court can consider the nature of the child support order in evaluating whether the obligor spouse has an ability to pay alimony.
- Supportive relationships: Sometimes following the filing of a divorce petition, one or both ex-spouses may decide to go live with friends. While living with their friends, the ex-spouses may pool their resources with their new roommates, sharing expenses such as rent, groceries, and utilities. This sort of living arrangement may qualify as a “supportive relationship,” and a court may consider the nature of this sort of relationship in determining what sort of alimony – if any – is appropriate.
Modification and Termination of Alimony
If a court entered an award of alimony, in most cases the court can later either modify or terminate that alimony award if there has been a “substantial change of circumstance.” The “change of circumstance” must typically be permanent, involuntary, and unanticipated by the parties at the time the alimony award was entered. Life changes such as an unexpected illness or disability, unemployment, or a remarriage can all result in an alimony award being modified or terminated.
Tax Treatment of Alimony
If any alimony is sought – and especially if alimony is awarded – both the obligor spouse and the receiving spouse will want to consider the tax consequences of such an award. How alimony will be treated for tax purposes depends on whether the alimony is to be paid on a periodic basis (for example, monthly, biweekly, or otherwise) or whether it is to be paid in one lump-sum payment. For example, if John is ordered to pay Louise a single payment of $20,000 in alimony, the payment would not likely be tax deductible for John nor will it be counted as income for Louise. But if Sandra is ordered to pay Mark $500 in alimony each month, this periodic payment is likely to be tax deductible for Sandra and will be counted as income for Mark. It is therefore important that divorcing spouses consult with a financial or tax advisor if alimony is a part of their divorce.
Child Support vs. Alimony
Some ex-spouses may be dismayed to learn that the court can order one spouse to pay alimony and child support, assuming that the divorcing couple has children. The obligor spouse may feel this is inappropriate since his or her ex-spouse is essentially being paid twice. It must be remembered, though, that child support are payments that are made to help pay for the costs of raising children (providing clothes, food, etc.), whereas alimony is for the benefit of the receiving spouse. Because each type of support is meant for a different person, a court is free to award both types of support.
Remember, though, that while child support must be awarded in any divorce case in which there is at least one minor child, an alimony award is discretionary and a court has the freedom to award alimony in an amount it feels appropriate based upon the facts and factors before the court.
If you feel that alimony might be (or should be) an issue in your Florida divorce, consulting with an experienced Florida divorce lawyer can be beneficial. If you are seeking alimony, an attorney can help you present the facts of your case persuasively to a judge and demonstrate that there is both a need and an ability to pay alimony in your case. Conversely, if your ex-spouse has requested alimony, an attorney can explore which statutory factors may be applicable in your case. These factors can result in either a lower alimony award or no alimony award at all.
Common Florida Alimony questions and answers
Q: Does Florida have a standard for alimony calculation?
A: Florida alimony law does not set specific numbers and there is no standard for amounts. But we do have an online tool that uses a national model for alimony.
Q: I have been married for 3 years and my spouse threatened me with alimony.
A: Under Florida law, alimony is usually ordered for long term marriages – over 12-14 years long. For a short term marriage such as 3 years, alimony is rare, if not impossible.
Q: Can the amount of alimony payments be changed?
A: Yes. Alimony payments depend on the income of both spouses. If income significantly changes, you can seek an alimony modification. Depending on the exact type of alimony, it is normally always modifiable.
Q: Is Alimony tax deductible?
A: Normal alimony, referred to as permanent periodic alimony is usually taxable to the recipient and deductible to the payer. But if the two of you enter an agreement for alimony, you can designate the tax treatment and the IRS will respect that designation.
Q: I have been married for 4 years and my spouse has supported me the entire time. Can I get alimony?
A: Very unlikely. In a 4 year marriage, Florida alimony law considers you an able-bodied adult, able to earn a living. Normally you need to be married at least 7 years for a decent alimony claim.
Q: We have been married for 5 years and separated for several years. If I don’t get divorced for another 5 years, can I qualify for alimony?
A: Again, very unlikely. Your financial existence was separate from your spouse when you began to live apart. You cannot milk out the length of your marriage just to prove alimony is needed. Also, by living on your own for that many years – you have proven you can live without alimony.
Q: My married is 20 years long. Does that mean I will definitely receive alimony?
A: You still need to prove your need for alimony, and your spouse’s ability to pay alimony. But based on the length of marriage, your alimony claim may be pretty strong.
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Attorney Alberto Ayo
assessing an alimony case