Once upon a time, most family law attorneys probably stated in the initial consultation to potential clients hoping to receive permanent alimony something similar to the following: "You have the right to maintain the standard of living enjoyed during the marriage as long as your spouse can afford to keep you in that standard without himself (or herself) dropping below the standard of living." But then came 2006 and 2007 in the Fourth and Third District Courts of Appeal. These appellate courts made clear that standard of living was not a superfactor. As a result, the standard of living factor suffered in importance and was no longer the benchmark for amounts in alimony cases. In the series of cases set forth below, the standard was limited to the needs and necessities of live sufficient to maintain just above bare subsistence levels.
However, in 2010, the Florida Legislature significantly modified the alimony statute. Not only did the legislature create durational alimony and defined its limited purpose for providing "economic assistance" for a specific period of time, but it also defined permanent alimony to include the standard of living in its definition. As a result, it is fair to ask is standard of living back to super strength for permanent alimony awards? This article will briefly review the evolution of the standard of living factor and argue that it is.
At one time, standard of living was a superfactor in determining the amount of alimony. Prior to the days of modern women's rights and prior to the days of specific statutory alimony criteria, the Husband had the right to establish the standard of living for his family. See, Pawley v. Pawley, 46 So.2d 464, 467 (Fla. 1950); Kaufman v. Kaufman, 63 so.2d 196, 197 (Fla. 1953)(husband has "prerogative ... to fix or set standard of living for himself and family....").
Back in those days, only wives could be awarded alimony. As to the amount of alimony awards, the wife was "entitled to live in a manner reasonably consonant with that which the husband has fixed...." Astor v. Astor, 89 So.2d 645, 648 (Fla. 1956)(a support unconnected with divorce case). Clearly the wife's independent earnings would limit the amount the husband would have to pay, but the standard of living established during the marriage was clearly considered the benchmark to which the wife was entitled to maintain subject to the Husband's ability to provide.
The statutory criterion for the amount of alimony prior to 1978 was strictly based on equities. In 1947, the statute provide alimony to be determined "as from the circumstances of the parties and nature of the case may be fit, equitable and just." Fla. Stat. §65.08 (1947). In 1967, it was changed to "as from the circumstances of the parties and nature of the case is equitable. Fla. Stat. §65.08 (1967). Even with the drastic changes to "no-fault divorce" in 1971, which allowed for Husband's to receive alimony, the statutory standard remained: "In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties." Fla. Stat. §65.08 (1971).
In 1972, the Florida Supreme Court held, "[i]n general, then, the primary criteria to be used in establishing the amount of alimony is the husband's ability to pay as above described, and the needs of the wife, taking into consideration the standard of living shared by the parties to the marriage. Firestone v. Firestone, 263 So.2d 223, 226 (Fla. 1972). The adjective phrase, "taking into consideration the standard of living," modifies and defines the noun "needs." Thus, it is clear the standard of living was to be considered in defining the wife's needs. See e.g., Pfohl v. Pfohl, 345 So.2d 371, 375 (Fla. 3d DCA 1977)("In determining the amount of such alimony, the courts have established two criteria: (1) the husband's ability to pay, and (2) the needs of the wife, taking into consideration the standard of living shared by the parties to the marriage.")
1978 was the first time standard of living became a specific statutory criterion, and it was listed first. Fla. Stat §61.08(2)(a)(1978).
However, in 1980, the Florida Supreme Court decided Canakaris v. Canakaris, 382 So.2d 1197 (Fla., 1980). Canakaris defined permanent alimony as follows: "Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties." Id. at 1197(emphasis added). That sentence represents an important change in two aspects. First, the Supreme Court used the conjunctive nouns, needs and necessities. Perhaps there is a difference between "needs" and "necessities," that was not explained. Perhaps they are to be used interchangeably, meaning the same thing. It may not make a difference because they were used in the conjunctive.
The second important change is the adjective phrase modifying needs and necessities. The adjective phrase used by the Supreme Court in Canakaris is a subtle, but perhaps significant difference than the adjective phrase used in Firestone. The phrase "as they have been established by the marriage" is stronger and more defining than "taking into consideration the standard of living shared...." Whereas Firestone made it clear that standard of living was to be considered in determining the need, Canakaris defines needs and necessities as the standard of living. Arguably, standard of living is more than a superfactor; it is the required standard to define needs and necessities.
As a result of Canakaris, not only was standard of living considered a superfactor, but also in some cases it was described as an entitlement. Consider the following from O'Neal v. O'Neal, 410 So.2d 1369, 1371 (Fla. 5 DCA 1982):
A divorced wife is entitled to live in a manner reasonably commensurate with the standard of living by the husband during the course of a long-term marriage. Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA 1980). A court must base an award of alimony to a wife upon the ability of her husband to pay that award and her financial needs in light of the standard of living she enjoyed during the marriage. Nicolay; Johnson v. Johnson, 386 So.2d 14 (Fla. 5th DCA 1980). See also McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975). These principles were not changed by Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980):
(emphasis added).
Even twenty years after Canakaris in 2000, the Supreme Court, while making it clear that the purpose of alimony was not to equalize the future income of the parties for a savings component, reiterated that "[t]he purpose of permanent periodic alimony is to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties. Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla. 2000), citing Canakaris, 382 So.2d at 1201(emphasis added). The issue in Mallard was whether permanent alimony should include a savings component. Essentially, Mallard held that a savings component was not to be included in alimony because a savings component was not part of the standard of living. Mallard used the term "lifestyles or needs" interchangeably and discussed them in terms of "the amount of money spent or the comforts enjoyed" and "the parties' history of consumption - whether on luxuries or on the literal necessities of life. Id.
Essentially for at least twenty-six years before and twenty-six years after Canakaris, the amount of permanent alimony to be awarded was based on the amount necessary for the receiving spouse to maintain the standard of living established during the marriage, considering the receiving spouse's ability to contribute as well as the paying spouse's ability to pay. There can be no question standard of living was a superfactor as it was the defining factor of need.
However, in November, 2006, the Fourth District Court of Appeal published the first of a series of cases declaring standard of living was not a superfactor. Donoff v. Donoff, 940 So.2d 1221 (Fla. 4th DCA 2006). Donoff stated:
The standard-of-living is not a super-factor in setting the amount of alimony- trumping all others. It has only a case specific and quite limited purpose. When the living standard during marriage was significantly high and the payor has the ability to pay more than minimum wage (so to speak), its purpose is to avoid having alimony set at bare subsistence levels. The wealthy plutocrat who exposes a spouse during marriage to a standard well beyond the basic necessaries of life on a meager level, should be required to do better than mere subsistence with alimony.
Id. at 1225. This was clearly new!
Donoff actually cited to Mallard as "reaffirm[ing] "the principle that the purpose of periodic alimony is to provide the needs and necessities of life." 940 So.2d at 1224. Oddly, however, Donoff conveniently left of the controlling adjective phrase from Mallard "as they were established during the marriage." As stated earlier that is an important defining phrase of needs and necessities.
In Jaffy v. Jaffy, 965 So.2d 825 (Fla. 4th DCA 2007), the court again stated that standard of living was not a superfactor. Jaffy involved a couple living beyond their means, funding their higher standard of living through debt. The court did not need to attack the standard of living factor. The solution was there was no ability to maintain the standard.
The final blow from the Fourth District was Levine v Levine, 964 So.2d 741 (Fla. 4th DCA 2007). Levine held," [w]here a high standard of living is met during marriage, the purpose of alimony is to provide for the less wealthy spouse above bare subsistence levels, not to fund the enjoyment of every little luxury enjoyed before divorce. Id. at 742-43.
The trial judge in Levine clearly erred in awarding too much alimony, not because the award met a very high standard of living, but rather because the award far exceeded the standard of living. The receiving spouse's own expert testified that her needs combined with the needs of the children totaled $23,000.00 per month. The court awarded her $23,000 per month in alimony, plus $11,000.00 per month in child support. Again it seems the simple solution would have been to reverse with instructions to determine her needs without the needs of the children as those needs are covered separately under child support. Instead, Levine used the inequitable result to attach the standard of living factor.
The Third District Court of Appeal joined the 2007 attack on standard of living in Lambert v. Lambert, 955 So.2d 35 (Fla. 3rd DCA ). Lambert involved another extreme case in which the Husband earned only about $700.00 more per month than the Wife. The court awarded the Wife $1,500.00 per month in alimony. The award left the Husband with only $1,000.00 per month, but left the Wife with approximately $3,300.00 per month. Lambert held: "The purpose of alimony is to avoid, where possible, having a former spouse 'pass from the ease and comfort of always having more than enough, to the distress of having only just enough for the essentials of minimum food, shelter and clothing.' The standard of living is not a super-factor in setting the amount of the alimony-trumping all others." 955 So.2d at 38 (omitting citations to Donoff).
Donoff, Jaffy, Levine, and Lambert were all troubling cases in that the trial judge in each case clearly abused discretion. What was additionally troubling was that both Jaffy and Levine were "gray-area" marriages. Arguably, however, each case went beyond what was necessary to correct the abuses that occurred.
Perhaps in large part due to the confusion about the standard of living as a factor in alimony cases, the Florida Legislature dramatically rewrote section 61.08, Florida Statutes in 2010. The revised statute created durational alimony, defined the types of alimony, and defined the short-term, moderate-term, and long-term marriages.
Primarily through the creation of durational alimony and the definition of permanent alimony, arguably standard of living is back as a superfactor when permanent alimony is appropriate. Primarily using the language from Canakaris and Mallard, the Florida Legislature defined permanent alimony "to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage." Fla. Stat. §61.08(8)(2010)(emphasis added). Furthermore, permanent alimony is appropriate only when the spouse lacks the financial ability to provide that standard for themselves.
The standard of living aspect of permanent alimony is in contrast to durational alimony, which is available only when permanent alimony is not appropriate. Durational alimony is not intended to meet the standard of living established during the marriage, but rather "to provide a party with economic assistance for a set period of time ... if there is no ongoing need for support on a permanent basis." Fla. Stat. §61.08(7)(2010)(emphasis added). It will take time for the courts to work out the distinction between the "economic assistance" standard for durational alimony and the "standard of living" standard of permanent alimony, but it seems clear that there is an indented difference.
Arguably, the Donoff, Laffy, Levine, and Lambert "above bare subsistence levels" will apply more to durational alimony than permanent alimony, where "standard of living" seems to be back.
