Are the Spousal Support Laws in the State of Florida Outdated?
Florida’s spousal support laws may well be among the most antiquated in the United States—at least according to some. A state which had similar spousal support laws as Florida (Massachusetts) completely overhauled their laws pertaining to spousal support years ago, as a means of reflecting society’s current economic state. Florida, despite many attempts to do so, has thus far failed to do the same. As an example, in the state of Florida, a relatively young (35-55), healthy woman who is gainfully employed, might nonetheless be awarded permanent spousal support so long as the marriage lasted 17 years or more, and other factors were present.
Because no specific formula is attached to the award of Florida spousal support, the judge in the case has extremely broad discretion in the matter. As a result, there are many Floridians currently paying permanent spousal support. This type of solution, while potentially good for the receiving spouse, forces divorced spouses to remain financially entangled. The paying spouse may find he or she is unable to move forward with life due to the financial obligations of spousal support. Retirement might be halted altogether, and even remarriage could become financially unfeasible if the current spousal support is financially crippling to the payer.
Of course, there is the flip side of this scenario—the spouse who has cut short his or her own education in order to put a husband or wife through school, or a spouse who stayed home to take care of the children and home in order to allow a husband or wife to pursue his or her career, should receive some level of spousal support to compensate for the lost work years, so long as the other spouse has the ability to pay, and other factors (listed below) are also in place.
The Factors Involved in Determining Spousal Support
Relevant factors are considered when a Florida judge determines whether spousal support should be awarded, and even when one spouse clearly has a need, if the other does not have the ability to pay, then no spousal support may be awarded. In other words, if the spouse ordered to pay support would be left with less net income than the receiving spouse, then no spousal support—or perhaps a low amount, or a temporary award—will be ordered. The factors which are typically considered by the judge when determining whether spousal support is warranted include the following:
- The earning capacity, educational history, vocational skills and relative employability of both spouses.
- The standard of living the spouses enjoyed during the marriage;
- The length of the marriage;
- The age, level of physical health and emotional condition of the receiving spouse as well as the age, level of physical health and emotional condition of the paying spouse.
- The tax consequences of an award of spousal support
- The time and expense required to seek employment, or sufficient training for employment.
- All the sources of income both spouses have access to, including any investment income.
- All financial resources, including separate property and awards of marital property.
- The contributions made by each spouse to the marriage. Homemaking, child care, education and helping the other spouse build his or her career are all considered valuable contributions.
- The responsibilities each spouse will have for the minor shared children.
While Florida—like most states now—is a no-fault state, if the infidelity of one spouse resulted in significant financial harm to the other, then the judge is allowed to consider the infidelity when determining whether spousal support is warranted. As an example, if a wife used a considerable amount of marital resources to buy expensive gifts for the person she committed adultery with, or spent a large amount of money on high-priced hotels where the two met, then the judge might award a larger amount of spousal support to the husband (assuming the wife was the higher-earning spouse), or could offset the losses through the divorce settlement.
The Different Types of Florida Spousal Support
Currently, the following types of spousal support exist in the state of Florida:
- Temporary spousal support may be awarded during the time a divorce is pending, should one spouse require financial support during the process, however once the divorce is finalized, this type of support automatically ends.
- Bridge-the-gap spousal support will begin once your divorce becomes final, but is generally for a very short duration—with two years being the max. Bridge-the-gap spousal support is intended to assist the receiving spouse in meeting short-term financial needs such as living expenses or to allow the receiving spouse to complete an educational program which will improve his or her future prospects for employment.
- Rehabilitative spousal support is intended to assist the receiving spouse in the acquisition of further training or education with an end goal of improved employment opportunities. If the receiving spouse requests rehabilitative spousal support he or she will be required to present a plan to the court which thoroughly outlines the financial resources necessary for the training, as well as the length of time it will require for such completion.
- Durational spousal support can be awarded when other types of support are simply not sufficient to fully meet present and future needs. The maximum allowable time for durational spousal support is equal to the length of the marriage—if the marriage lasted nine years, then the receiving spouse would be unable to receive durational spousal support for longer than nine years.
- Permanent spousal support can be awarded when the judge believes the economic needs of the receiving spouse are permanent, however the judge is required to justify the belief that permanent spousal support is appropriate, as well as why a different type of support might not be more reasonable. An award of permanent spousal support takes the length of the marriage into consideration as well as other specific factors and an award of permanent spousal support may be modified or terminated when a substantial change of circumstances (for either party) exists.
- Lump-Sum spousal support. Lump-sum spousal support is a specific amount of money, ordered to be paid in one payment or in installments. Lump-sum spousal support will be awarded only when the court has found a permanent spousal support award is justified, however there are special circumstances warranting this type of payment. For example, a receiving spouse in poor health might be awarded spousal support in the form of a lump sum.
- Nominal spousal support. This type of spousal support may be awarded in a Florida divorce case in which there is entitlement to support but insufficient resources. Nominal spousal support reserves jurisdiction for a later modification of the amount of the spousal support award.
How the Length of Your Marriage May Affect Your Award of Spousal Support
Under Florida laws, the length of a marriage contributes to eligibility for permanent spousal support. A marriage of at least 17 years is eligible for permanent support, so long as the award is appropriate, taking all other factors into consideration. Therefore, the lower earning spouse in a marriage which has lasted 17 years or longer, with clear and convincing evidence to justify an award of permanent spousal support, could be awarded this type of support. In marriages which last less than 7 years, permanent spousal support is considered appropriate only when exceptional circumstances exist.
A marriage lasting between 7 and 17 years can go either way, depending on the disparity in income and the need of one spouse, as well as the specific circumstances of the marriage. Keep in mind, the length of the marriage is from the date of the actual marriage until the date one spouse files for divorce—not the date when the couple informally separated, or stopped living with one another.
Are You Entitled to Spousal Support Under Florida Divorce Laws?
As you can see, the court has extremely broad discretion when determining whether a spouse is entitled to receive spousal support, how much support will be received, how long those payments will last, and the type of spousal support to be paid. The intent behind Florida’s spousal support laws is to prevent the state from having to support a spouse left in poverty by a divorce through welfare, food stamps and medical programs.
This means the court tends to look at the higher-earning spouse to ensure the lesser-earning spouse does not end up as a burden on the state, as well as to ensure that once a marriage is dissolved, both spouses will continue to enjoy the same standards of living as when they were married. Although this may sound good in theory, in practice it simply takes much more money to maintain two households.
Further, a spouse who is not working when he or she is awarded spousal support may later engage in a relatively well-paying career which could leave him or her doing quite well when the salary is combined with spousal support. On the other side, the person paying spousal support could end up with a much lower standard of living than he or she enjoyed during the marriage, and little to look forward to as far as improving their finances when facing permanent spousal support.
What About Underemployed Spouses Who are Dodging Spousal Support?
Because judges in the state of Florida have so much latitude in the matter, it is impossible to say how much spousal support the receiving spouse might be entitled to. The needs of the receiving spouse, as well as the paying spouse’s ability to pay are both significant factors. In the case of a spouse who is earning significantly less than he or she is capable of earning in a clear effort to dodge spousal support obligations, the court may impute income to that spouse.
This means that when a spouse with a doctorate degree is waiting tables—not out of necessity or inability to find a job in his or her profession, but out of a desire not to pay spousal support—the court may determine what that person would be making if he or she was appropriately employed. If the person is making minimum wage, but has the clear capacity to earn $150,000 a year, then the $150,000 may be used when determining the amount of spousal support. Remember, Florida courts do not look kindly upon attempts to avoid financial responsibility.
Modifications of Florida Spousal Support
Contrary to popular belief, spousal support can be modified or ended—though not easily. In fact, the only time spousal support cannot be modified is when both parties agreed to non-modifiable permanent spousal support at the time of the divorce. When and how Florida spousal support can be modified or terminated depends largely on the type of support awarded. A bridge-the-gap spousal support award cannot, under any circumstances, be modified. If a spouse receiving rehabilitative spousal support fails to comply with the rehabilitative plan—or completes the plan early, modification might be considered by the court. If there has been a significant change in financial circumstances for either spouse, rehabilitative, durational and permanent spousal support are potentially modifiable.
If the receiving spouse remarries, or if either spouse dies, permanent and durational spousal support automatically ends. If the receiving spouse is cohabiting with an unrelated person in a “supportive relationship,” the court may modify or terminate an award of permanent spousal support. If the paying spouse retires or suffers a layoff from his or her employment, the spousal support award may be modified. On the other hand, should the receiving spouse enjoy a significant increase in income, the paying spouse may petition for a reduction in spousal support.
What Happens if the Paying Spouse Stops Paying?
Under Florida law, court-ordered spousal support can be withheld from the paycheck of the party under an obligation to pay through a type of order called an Income Withholding Order. The money may also be ordered to be paid to Support Enforcement who will then pay the receiving spouse. If the paying spouse does not pay Support Enforcement as ordered, the driving privileges of the paying spouse could be suspended. There are also considerable remedies available under the “contempt” powers of the court. If a payor willingly does not comply with a prior court order the judge may suspend professional licenses, seize assets, or even order the arrest of the person refusing to pay. An experienced Ayo and Iken alimony attorney can thoroughly assess your individual circumstances, then give you an idea of whether you are entitled to spousal support—or whether you will be required to pay spousal support. Your attorney will fight for what you are owed, or, if you are likely to be the paying spouse, will attempt to limit the amount you are obligated to pay under Florida spousal support laws.