There are many things a court has to consider when dealing with a request for alimony, but the first issue the court has to determine is whether either party actually needs alimony, and whether either party can actually pay alimony.
From there, the court in determining a proper award of alimony or maintenance, shall consider all relevant economic factors, which include but are not limited to:
The standard of living established during the marriage
The court when considering this factor is trying to determine how the parties lived during the marriage. Some things the court might consider are: What is the value of the marital home? What is the value of the parties’ cars? What kind of possessions do they have? What kind of vacations did the family take? The higher the standard of living, the greater chance of alimony in Florida being awarded. However, the standard of living during the marriage is not so much of a factor in short term marriages.
The duration of the marriage.
Generally speaking, the longer the marriage the more exposure one has to having an award of alimony being made to one of the parties.
The age and the physical and emotional condition of each party.
A person’s age and health have an impact as to whether alimony in Florida is awarded. If a party is older and in poor health, they will have a greater probability of being awarded alimony in Florida then a younger, healthier person.
The financial resources of each party
, including the non-marital and the marital assets and liabilities distributed to each.
The Court looks at the financial situation of each party. It is important to note that the Court can also look at a party’s non-marital assets to determine whether an award of alimony is proper.
The earning capacities, educational levels, vocational skills, and employability of the parties
… and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
There are times when a party may not be working but this factor is not limited to that, rather it takes into consideration whether the party has the ability to work. For example, a stay at home mom who left college to raise the parties’ children, never to finish her degree. While that party may not earn anything at this point, with the completion of his/her education he/she could find employment and support himself/herself. Keep in mind that this not an atypical scenario where rehabilitative alimony in Florida might be considered.
The contribution of each party to the marriage
… including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
Primary examples you would see raised here for the court’s consideration is the stay at home mom, the spouse who moved to several different states (quitting a job each time) to further the career of the other spouse, or a spouse who worked to assist the other spouse in getting an advanced degree or specialized education/training.
The responsibilities each party will have with regard to any minor children
… they have in common.
The court might consider under this factor the age, health, or special needs of a minor child of the parties.
The tax treatment and consequences to both parties of any alimony award
… including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
Alimony in Florida can be taxable or nontaxable to the recipient spouse. Typically, alimony in Florida is tax deductible to the person paying it and taxable to the party receiving it which is in line with the position of the Internal Revenue Service.
All sources of income available to either party
… including income available to either party through investments of any asset held by that party.
An example of this type of income is where the court awards to one of the parties an investment account that has historically earned 10% a year, then the Court could add whatever that amount of money is to that party’s income when considering whether to award alimony in Florida.
Any other factor necessary to do equity and justice between the parties.
This is a catchall which gives the Court freedom to fashion an award of alimony in Florida.
(Florida Statute §61.08)
Family law issues can become extremely complex. Securing strong legal representation from an attorney who knows Florida divorce law is the first step toward the outcome you deserve.
The purpose of alimony in Florida is to provide financial assistance to the economically weaker spouse. In order to even be considered for an entitlement to alimony, there has to be
- a legal marriage
- a need for financial assistance on the part of the requesting spouse; and
- the other spouse has to have an ability to pay the alimony.
Unlike child support awards in the state of Florida, there is currently no mathematical formula to calculate alimony.
About Alimony in Florida
Although alimony awards can be difficult to predict, there are guidelines that the court must follow in determining whether to award alimony, and how much alimony to award.
Types of Alimony in Florida
In Florida, there are six (6) types of alimony that may be available to a party in a dissolution of marriage action, of which four are relatively distinct and two that are not, all of the forms of alimony are listed as follows:
• Permanent Periodic Alimony:
This type of alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who does not have the financial ability to meet his or her basic needs and necessities of life. The length of your marriage and any disparity in income are the main factors that a court will consider in awarding permanent periodic alimony. Permanent periodic alimony continues until the death of either party, the remarriage of the recipient spouse, or cohabitation in a financially supportive relationship. Permanent alimony may be awarded following a marriage of long duration (more than 17 years) where there is a disparity in income, following a marriage of moderate duration (7 to 17 years) if such an award is appropriate based upon clear and convincing evidence, or following a marriage of short duration (less than 7 years) if there are exceptional circumstances (ie. poor health and/or disability of the spouse preventing him/her from obtaining employment). The court has to make a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship in accordance with s. 61.14.
• Durational Alimony:
This type of alimony may be awarded when permanent periodic alimony is inappropriate. Florida Statute § 61.08 fashioned Durational Alimony as another option for the Courts to apply to provide for an equal playing field for the parties. The purpose of durational alimony is to provide a party with economic assistance for a set period of time (which cannot exceed the length of the marriage) following a dissolution of marriage if there is no ongoing need for support on a permanent basis. This does not necessarily mean, however, that the Court must award the receiving spouse Durational alimony for the total length of the marriage. An award of durational alimony generally terminates upon the death of either party or upon the remarriage of the party receiving alimony. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances in accordance with Florida Statute § 61.14. The length of an award of durational alimony may not be modified except under exceptional circumstances.
• Rehabilitation Alimony:
This type of alimony is paid over a definitive time period to allow a party the chance to become self supporting by obtaining the necessary education and training to gain new employment skills. This can include vocational school or college. An individual may be awarded another form of alimony along with rehabilitative alimony. This type of alimony may be awarded in a short-term marriage where one spouse has stayed home to take care of the children and needs education or training to re-enter the work force. It should be noted that in order to make an award of rehabilitative alimony, there must be a specific and defined rehabilitative plan. Also, an award of rehabilitative alimony can be modified or terminated based upon a substantial change in circumstances, or noncompliance with the rehabilitative plan, or upon early completion of the rehabilitative plan.
• Bridge the Gap Alimony:
This type of alimony is a short-term alimony which last few months to a couple of years and it is designed to assist a person in transitioning from being married to single. A party may need time to get a job or money to establish a new residence. May be given in a short-term marriage where there is a disparity in income. The length of an award may not exceed two (2) years and generally terminates upon the death of either party or upon the remarriage of the party receiving alimony. According to Florida Statute § 61.08, an award of bridge-the-gap alimony shall not be modifiable in amount or duration.
• Temporary Alimony:
This type of alimony is awarded during the pendency of the divorce, meaning an award for on-going support during the course of your divorce action. Although temporary alimony is not considered one of the four distinct types of alimony, temporary alimony is commonly requested immediately after filing for a divorce and before a final judgment is reached. It should be noted that temporary alimony awards can be made retroactive to the date when the original petition for temporary assistance was filed if the need existed at that time and the payor spouse had the ability to pay. The fact that the Court can grant Temporary Alimony is significant as, depending on the back-log of cases on the Court’s docket, such request may not be heard for months after filing for divorce. Temporary Alimony can require one spouse to pay for the other spouse’s attorney’s fees, if warranted.
• Lump Sum Alimony:
This type of alimony is paid in a lump sum of money, typically when ongoing monthly payments are not proper, fitting or practical.
Florida Divorce: Do I really need an Attorney?
I have had several people come to me in the untold number of years that I have practiced law who have asked me if they need to have a divorce attorney to handle their dissolution of marriage case.
I am a bit humored when asked that because a lot of times I feel like a mechanic must feel when someone drives up with a car that has a smoke curling up from the engine and the car dies pulling into their parking lot. That said, there is no real easy answer to the question of whether you need a lawyer for your Florida divorce, but I can say that more often than not it is better to have an attorney.
Why, you ask… well here is why.
- There are some great forms out there that you can use to fill in the blank but if you have never gone through a divorce before let alone filed out the forms for Florida divorce, you do not know if you are filling them out correctly or what to ask for.
- That last part leads to my second point, what to ask for… unless you are well versed in the Florida Law on Dissolution of Marriage (a.k.a. Florida Statute 61), how do you know what to put on those forms.
- The final reason I would suggest that is better to have an attorney is because generally speaking there are emotions involved in the termination of a relationship and most people to not operate with a clear head when they are emotional.
The bottom line is that choosing to use an attorney or not is personal but ultimately remember that you are making decisions that will literally effect the rest of your life, so chose wisely… because making the wrong decision could cost you more than the money you pay your attorney.
Child Custody Out Of Wedlock – Legal Issues
Unmarried parents often deal with a number of difficult situations when it comes to child custody and child support. An unwed mother might find that the father of her child refuses to acknowledge paternity and refuses to pay child support. An unmarried father whose partner contests his paternity may find it impossible to receive custody rights or visitation with his child. In some cases, an unmarried father may be forced to pay child support for a child that is not his.
While most people understand child support, custody and time-sharing in terms of the divorce process, parents who were not married at the time a child was born have the same rights to seek these things on behalf of their children. When it comes to the rights of parents in Florida, the law does distinguish between married parents and unmarried parents. Regardless of your marital status though, you do have certain rights regarding the custody and support of your child. The one big difference is that parents who are not married have to establish their rights through a paternity action. A court-ordered DNA test may be required to identify the biological father.
As the relationship ends for unmarried parents, both the Mother and Father have to understand the importance of a paternity determination. Mothers should know that although a Father’s name may not appear on a child’s birth certificate, the Father may have the right to have it added. Fathers need to know that they must fill out the Florida Putative Father Registry form in order to start the process of establishing your rights.
When it comes to the rights of parents in Florida, the law does distinguish between married parents and unmarried parents.
Regardless of your marital status though, your child(ren) come first. A child is entitled to financial support from both parties. Of course, before child support provisions can be made, you have to establish paternity. Note that while the Department of Revenue (DOR) is helpful on obtaining child support, DOR may incorrectly calculate child support because it does not participate in certain discovery practices to determine the accuracy of the parties’ incomes and parents could receive less or must pay more than required by law. additionally, DOR does not have the ability to represent parents on other issues involving custody, timesharing, residence of the child and relocation.
An experienced Family Law and Custody Attorney, can help both unmarried mother and fathers establish their rights as it relates to their children and assist in obtaining the correct amount of child support. As with any rights however, there are rights come responsibilities. Your Attorney should take great care in explaining these responsibilities before moving forward with any actions.
While unmarried fathers do have the right to be involved with their children, these rights are not automatic. As is often stated,
The state can determine where the baby came from but the deposit is harder to figure out…
The bottom line is that you have to establish paternity. After that step is taken, your attorney can work with you to establish a parenting plan for your child that makes sense for your situation. Keep in mind that even if you and your child’s parent have an informal agreement already worked out, it is very important to formalize that agreement to protect the child and to make it clear.
How is a Divorce Attorney, an investment in your future?
Q client told their lawyer that hiring a lawyer to handle divorce is like investing in your future. If you don’t choose the right one, it could be a very bleak future.
I don’t say that to be the oh no woe is you… but it’s something to think about.
When you attorney first meets you to talk about your case, they should be forthright and honest about the good, the bad and the ugly on your legal matter. It is not appropriate for a divorce attorney to paint only the rainbow and puppies and kitties picture when there could be serious issues that need to be resolved. That doesn’t mean that your attorney should paint a doom and gloom picture either. You should feel an establishment of trust with the person on the other side of the desk and you should believe that a healthy attorney client relationship will mean mutual respect, give and take, and total honesty.
The point is that if you feel judged by the attorney you are meeting with, or if you don’t feel like you can share all the dark dirty secrets of your marriage and divorce with the attorney you are meeting with – then that might be a red flag that that attorney isn’t the one for you.
This is your future… choose wisely!!!!
Family law issues can become extremely complex. Securing strong legal representation from an attorney who knows Florida divorce law is the first step toward the outcome you deserve. If you are concerned about what will happen to your children, the future of your home and other assets, or the overall costs of divorce, schedule an initial consultation. Most attorneys will do this for free.