The State of Florida Alimony

On behalf of Eisenmenger, Robinson & Peters, P.A. posted in Family Law on Monday, September 14, 2015.

ALIMONY:  The Florida Legislature has made two recent attempts to significantly modify alimony in Florida.  The first Legislative change in 2014 was vetoed by Governor Scott.  The second bill died without passage when the State House abruptly ended Session in 2015, without passage of the Alimony Reform Bill.  None of the Special Legislative Sessions thereafter dealt with the Bill.

As a result, Florida Statute 61.08 remains in full force and effect, concerning those seeking and those from whom alimony is sought.  Florida’s alimony statute sets forth multiple factors the Court is to consider when awarding alimony.  The two initial primary factors are the recipient’s need and the payer’s ability to pay. Additional factors include, but are not limited to length of marriage, life style, roles within the family structure, contribution to the family and career of the other spouse and the age of the parties.

The alimony statute references a spouse’s infidelity as a defense to an alimony claim, seemingly interjecting fault into a dissolution action.  However, the Courts have eviscerated the statute’s clear language by stating adultery only matters if the adulterer’s behavior has caused waste to the marital estate.

Unlike child support, where a specific mathematical formula determines the amount of child support owed by one parent to another parent, no such formula currently exists for alimony.  The amount owed and the length of payments due are moving targets, subject to the very broad discretion of the trial Judge hearing the case.  If seeking alimony for a client or defending an alimony claim, the level of predictability is a large part dependent upon the lawyer’s familiarity with the Judge assigned the case.  Even then predictability is at best difficult.

Several factors make alimony likely.  A long-term marriage where one spouse makes considerably more income than the other, it is a case where the decision is not if alimony is owed.  It is a case of how much and how long.

A frequent issue is whether one spouse or both are “underemployed” or intentionally reducing income while the matter is before the Court.  Vocational experts are often called to testify to support the imputation of income to the “underemployed” spouse.

Whether seeking the award of alimony or seeking to limit the amount awarded, establishing realistic expectations for the payer or the payee can make the resolution of the case easier.  Unrealistic demands and/or unrealistic refusal to pay alimony guarantees an expensive trial and probable appeal.  Cases that settle mean the payer pays more than they wanted to pay and the payee recovers less than they wanted to recover.