Alimony is arguably the most unpredictable issue in any dissolution of marriage case. One could present the identical facts to five different judges and get five completely different results. Historically, the reason for this unpredictability is that the factors used to determine the type and amount of alimony are somewhat subjective and the courts had much discretion. Effective July 1, 2010, the Legislature made sweeping changes to the alimony statute. Effective July 1, 2011, the Florida Legislature again modified the alimony statute ostensibly to clarify and polish-up the major changes made the previous year. While the changes have dramatically changed the substantive law as to alimony, the factors are still sufficiently subjective, and judicial discretion is still sufficiently broad enough, to continue unpredictability into the future. In fact, until the dust settles, alimony awards may now be even more unpredictable as there are more options available to the court and more arguments to be made by attorneys. See, related article: Is Standard of Living Back to Super Strength Factor for Permanent Alimony?
Regardless, a good, competent family law attorney needs to change the way he/she presents the case.
2010 Statutory Alimony Changes
The most notable change, but certainly not the only change, of the 2010 amendment was the creation of durational alimony. Prior to July 1, 2010, the court could not award alimony for a set period of time except through the award of bridge-the-gap alimony or rehabilitative alimony. Bridge-the-gap alimony was generally for only a couple of years, and rehabilitative alimony terminated when the specifically required rehabilitation plan was completed or abandoned.
However, with the creation of durational alimony, the court became empowered, when it found permanent alimony inappropriate, to award alimony for a set period of time, not to exceed the length of the marriage. The Florida Legislature also in 2010 codified and defined bridge-the-gap alimony, rehabilitative alimony, permanent alimony, and the rebuttable presumptions defining short-term marriages, moderate-term marriages, and long-term marriages.
The 2010 statute defined permanent alimony as intended "to provide for the needs and necessities of life as they were established during the marriage ... for a party who lacks the financial ability to meet his or her needs and necessities of life...." Fla. Stat. §61.08(8) (2010). However, durational alimony is defined as "support to provide a party with economic assistance for a set period of time...." Fla. Stat. §61.08(7) (2010). The difference in the definitions leaves an unanswered question as to whether "economic assistance" will be greater or less than "needs and necessities of life as they were established during the marriage."
Prior to the 2010 changes there was no statutory requirement of determining need and ability to pay although the case law had clearly required the court to make such findings in awarding alimony. The pre-2010 statute required the court to consider eight specific factors to determine the proper award of alimony (Subsection (2) factors). Generally courts had considered these Subsection (2) factors in determining whether there was need and ability to pay. However, under the 2010 revision and as carried forward in the 2011 amendment, the court is now required to make a specific factual determination of need and ability to pay before considering the Subsection (2) factors. Strictly construed, arguably the Subsection (2) factors are to be considered only in determining the proper type and amount of alimony, not to determine need and ability to pay.
This leaves some potential confusion as to the application of the statute. The statute does not provide any specific factors for the court to consider in determining whether there is a need and ability to pay. One of the Subsection (2) factors for determining the type and amount of alimony after need and ability to pay has been established is the standard of living established during the marriage; another is the financial resources of each party; another is the earning capacity of each party; another is all sources of income available to each party; another is the responsibilities each will have regarding common minor children; and a sixth is the age and physical and emotional condition of each party. Are these not all factors the court would necessarily consider to determine need an ability to pay? Presumably, the court is not precluded from considering these factors to determine whether there is need and ability to pay, but the court is clearly required to consider them to determine the type and amount of alimony once need and ability to pay has been established.
The 2010 revisions also added to and amended the Subsection (2) factors the court must consider to determine the type and amount of alimony. The factors now include "[t]he earning capacities, educational levels, vocational skills and employability...[;] the responsibilities each party will have with regard to any minor children they have in common...[;] 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...[; and] income available to either party through investments of any asset held by that party." Fla. Stat. §61.08 (2).
2011 Statutory Alimony Changes
After the 2010 major changes became effective, there were many open questions, several of which are addressed above and still remain open questions. However, there was some confusion and debate as to whether durational alimony was available for long-term marriages and whether there was a different standard for awarding permanent alimony in moderate-term marriages and long-term marriages.
Strictly construed the 2010 statute limited durational alimony to only short-term or moderate-term marriages. That left only permanent alimony for long-term marriages. The other oddity of the 2010 statute was that permanent alimony could be awarded in both long-term and moderate-term marriages based on a consideration of the Subsection (2) factors. Thus, other than the fact that durational alimony could be awarded in moderate term marriages, but not in long-term marriages, there seem to be no distinction or heavier burden for an award of permanent alimony in moderate-term than in long-term marriages. Of course, permanent alimony in short-term marriages was available only under exceptional circumstances.
The Florida Legislature resolved both of these issues with the 2011 revision. Durational alimony is now available in long-term marriages if there is no need on a permanent basis for ongoing support. Permanent alimony is available in moderate-term marriages only based on the higher burden of clear and convincing evidence of the subsection (2) factors. Permanent alimony in short-term marriages requires a written finding of exceptional circumstances. Furthermore, to award permanent alimony in any length of marriage (short, moderate, or long), the court must make a finding that no other form of alimony is fair and reasonable under the circumstances.
Finally, under the 2011 version any award of alimony cannot leave the paying spouse with significantly less net income than the net income of the receiving spouse unless the court makes written findings of exceptional circumstances.
Whether the changes to the alimony statute over the last year and several months will have an effect of the predictability of alimony is yet to be determined.
If alimony is currently an issue you have or expect to have in either a dissolution of marriage case or a modification proceeding, you would be wise to consult with a Board Certified Marital and Family Law attorney. Only Board Certified Family Law attorneys may represent themselves as experts or specialists in family law matters.
