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Florida Alimony Law Update

Florida alimony law appears set to change this year.  A bill has cleared the house and senate and is waiting for the Governor’s signature. 

The bill sets forth 9 factors set forth to be considered in determining alimony.  (1) First need and ability to pay, the burden being on the moving party to establish their need and the other side’s ability to pay.  If that is established the court will then consider: (2) the parties standard of living during the intact marriage and anticipated needs of both parties after a divorce is granted; (3) the length of the parties’ marriage; (4) the parties’ ages and physical and mental conditions; (5) the income and resources of each party and any income earned from marital and non marital assets; (6) the earning capacity, educational level and employability of the parties; (7) the ability of each party to obtain skills or education to enable themselves to contribute to their own support or become self-supporting; (8) the contributions that each party made to the marriage including education, career building, homemaking, and child care, the responsibility that each party will have in raising children that the parties have in common; and (9) any other factor the courts of equity and justice  should consider in making an alimony award including whether a supportive relationship exists or that one of the parties may reasonably retire.

In regard to the duration of marriage, the bill has defined a short-term marriage as  a marriage that lasts less than 10 years; moderate-term marriage as a marriage that lasts between 10 and 20 years; and a long-term marriage will now be considered to be a marriage that lasts 20 years or more.  The length of the marriage is considered to be the amount of time that has elapsed between the date of the marriage and the date of the filing for divorce.

The bill eliminates the term permanent alimony. The types of alimony per the bill are now temporary, bridge-the-gap, rehabilitative, and durational alimony.  Courts may order alimony to be paid in a lump sum or as periodic payments.

The bill states, Bridge-the-gap alimony may be awarded to assist a party in making the transition from married to single life.  It is intended to assist a party with identifiable, short-term needs.  The length of an award of bridge-the-gap alimony may not exceed 2 years.

Rehabilitative alimony is intended to provide education and training that will enable a party to become self-supporting or contribute to their own support.  An award of rehabilitative alimony may not exceed 5 years.

Durational alimony lasts for a set period of time.  It may not exceed 50% of the length of a short-term marriage, 60% of the length of a moderate-term marriage, and 75% of the length of a long-term marriage.  An award of durational alimony may be extended under exceptional circumstances based upon a consideration of the following 4 factors and the 9 factors listed above. (1) First, the extent to which the payee’s age and employability wholly or partially limit the payee’s ability to be self-supporting; (2) Second, the extent to which the payor’s available financial resources wholly or partially limit the payor’s ability to be self-supporting; (3), the extent to which a payee’s mental or physical disability wholly or partially limits the payee’s ability to be self-supporting;  and (4), the extent to which a payee is the caregiver to the parties’ mentally or physically disabled child.  The amount of durational alimony will be the amount that is required to meet the payee’s reasonable needs, or an amount that does not exceed 35% of the difference between the husband and wife’s net incomes, whichever amount is less.

An alimony award may not leave the obligor with significantly less net income than the net income of the obligee, unless there are exceptional circumstances

Courts will be permitted to consider the adultery of either spouse and its resulting economic impact in determining the amount of alimony to award.

The bill also states that in actions for modification, the court will be authorized to terminate or reduce an award of alimony when the payor has reached the normal retirement age.  The normal retirement age will be considered to be the normal retirement age specified by the Social Security Administration, or the customary retirement age for the payor’s profession.  The payor must actually retire or make demonstrable efforts to retire.  Retirement must reduce the payor’s ability to pay.  The court will look at the following ten factors in determining whether to reduce or terminate alimony.  First, the age and health of the payor. Second, the type of work performed by the payor. Third, the customary age of retirement in the payor’s profession. Fourth, the likelihood that the payor will return to work, and the payor’s motivation for retiring.  Fifth, the needs of the party receiving alimony and that recipient’s ability to contribute to his or her own needs. Sixth, the impact that the termination or reduction of alimony would have on the payee.  Seventh, the parties’ assets before, during and after the dissolution of marriage, and whether either of the parties wastefully dissipated assets received at the time of the divorce.  Eighth, the income earned by the parties during and after the marriage.  Ninth, the retirement, pension and Social Security Benefits received by the parties after the marriage.  Tenth, the payor’s compliance with his or her alimony obligation.  A payor may file a Supplemental Petition for Modification six months prior to the date of retirement.

If you have questions about alimony and the changes in alimony law please call us to schedule a consultation on (786) 539-4935.

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Non Modifiable Durational Alimony In Divorce Agreement Does Not Terminate On Remarriage

In Dills v. Perez, the Florida 5th District Court of Appeals found the trial court had committed reversible error where it terminated the Former Husband’s alimony obligation on remarriage of the Former Wife.

While Florida Statute Section 61.08(7) mandates that an award of durational alimony terminates on death or remarriage of the party receiving alimony, in this case the parties’ Marital Settlement Agreement stated that durational alimony that would be non-modifiable for 48 months and the Former Wife remarried within the 48 month period. The Appellate Court recognized that the parties had agreed to relief beyond what the statute would have otherwise provided for but it was permissible and binding for the parties to do so.

As the parties had specifically included the language that the durational alimony would be non-modifiable during the the 48 Month period the 5th District Court of Appeals reversed the lower Court decision allowing for the termination of the alimony obligation. Had the parties not included such language the alimony obligation would have terminated upon remarriage as per the statute.

If you are going through a divorce, considering a settlement, or facing modification of alimony it is important you understand your legal rights and the intricacies of your situation so contact us for a consultation to discuss the circumstances of your case.

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How Do I Get Alimony?

If you have a need for financial support from your spouse to sustain the standard of living maintained during the marriage, your spouse has the ability to pay, and the marriage was of sufficient length to justify the type of alimony you are asking for, be it bridge the gap alimony, rehabilitative alimony, durational alimony, or permanent alimony,  you start by asking the Court to award you alimony in your divorce petition or counter-petition.

You will then need to develop and present evidence to the court to support the statutory alimony factors in Florida Statute Section 61.08, and the factors applicable to the specific type of alimony you are seeking.

When trying to get alimony it is important to present the right evidence to support the specific type of alimony you are seeking.  For instance, you can not expect to get rehabilitative alimony without presenting a rehabilitative plan to the Court.

The facts of your case  determine what type of alimony you should ask for, what evidence needs to be presented in support of that type of alimony, how the other side will likely defend against your alimony claim, and the amount, and duration of an alimony award.

Depending on the facts of your case you may also be entitled to temporary support during the time the divorce case is going on.

If you have questions about alimony in your case contact us.

 

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Termination Of Alimony Because Of Supportive Relationship

Pursuant to Florida Statutes Section 61.14(b)(1) a court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. The burden is on the obligor to seek the modification and prove by a preponderance of the evidence that a supportive relationship exists.

In Pollack v. Pollack, the Fifth District Court of Appeals for the State of Florida confirmed that a termination of alimony on such grounds should be retroactive to the time of filing a petition for modification rather than the beginning of the supportive relationship itself.

Delaying in the filing a petition for modification can cost you the alimony payments owed between the time of the beginning of the supportive relationship and the time of actual filing of the petition for modification.  A party seeking the modification on such grounds will want just enough time to pass to be able to obtain and present clear evidence of the supportive relationship to the court.

If you need to talk to one of our lawyers about the modification of alimony, please call our office to schedule a consultation.

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Attorney’s Fees and Alimony Awards Must Be Supported By Findings Of Fact Including Need And Ability To Pay

If you hope to obtain an attorney’s fee award, temporary support, or alimony in a divorce case you need to present evidence to the court of your need and the other parties ability to pay.

Evidence presented should include the standard of living established during the marriage; the contribution of each party to the marriage; the responsibilities of each party in relation to any minor children; the duration of the marriage; the age and the physical and emotional condition of each party; the financial resources of each party; the earning capacities, educational levels, vocational skills, and employability of the parties; and the sources of income available to the parties.  The court then needs to make specific findings based on that evidence presented.

In Abbott v. Abbott, the First District Court of Appeals reversed the trial court’s award of attorney’s fees and alimony because it had failed to make any findings of fact with regard to the wife’s need, the husband’s ability to pay, the parties’ incomes and expenses, and the applicable statutory factors.

The attorney’s fee award was not supported by the findings necessary to support it either.  Specifically, the trial court failed to make any findings of fact with regard to the Former Wife’s need for alimony and the Former Husband’s ability to pay, the parties’ incomes and expenses, and the factors listed in Florida Statute Section 61.08(2)(a)-(j).

The Court spelled out in detail its analysis of the alimony issue:

Appellant, the Former Wife, appeals the final judgment of dissolution of marriage, arguing that the trial court erred in its calculation of the permanent alimony award, in denying her request for retroactive alimony, and in failing to make the requisite findings of fact pursuant to section 61.08, Florida Statutes (2013). The Former Wife also asserts that the trial court erred in awarding her only $5,000 in attorney’s fees and by failing to make any findings of fact on this issue. Because the trial court failed to make sufficient factual findings to allow for a meaningful review, we reverse the alimony and attorney’s fees awards.

In the final judgment of dissolution of marriage, the trial court divided the parties’ assets and liabilities, awarded an equalization payment to the Former Wife, and then found and ordered as follows: Section 61.08 of the Florida Statutes sets forth the factors for this Court to consider in determining the amount of alimony, if any, to be awarded to the Wife. Among other things, this Court has considered the standard of living established during the marriage, the duration of the marriage, the age and the physical and emotional condition of each party, the financial resources of the parties, work experience of the parties, and the contributions of each party to the marriage. The Court finds that the Wife has a need and the Husband has the ability to pay permanent alimony to the Wife, in the sum of $750.00 per month commencing on March 10, 2015․

The court finds that the Wife has a need and the Husband has the ability to contribute towards her attorney’s fees. The Court finds that reasonable attorney’s fees to be awarded to the Wife totals $5,000.00․

The trial court denied the Former Wife’s motion for rehearing, in which she argued in part that the trial court failed to make the requisite findings in awarding alimony, in not making the alimony payments retroactive, and in awarding attorney’s fees. This appeal followed.

The trial court’s alimony award is reviewed for an abuse of discretion. Broemer v. Broemer, 109 So.3d 284, 289 (Fla. 1st DCA 2013). An appellate court will not disturb an alimony award if it is supported by competent, substantial evidence and the trial court complied with the law, but it reviews the trial court’s application of the law to the facts de novo. Id. Section 61.08, Florida Statutes (2013), governs the award of alimony and provides in part that “[i]n all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.” Subsection (2) in turn requires the court to “first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.” Id. If the court finds that a party has a need for alimony and the other party has the ability to pay, then, in determining the proper type and amount of alimony, “the court shall consider all relevant factors, including, but not limited to” those enumerated in subsection (2)(a)-(j). Id. Those factors include the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional condition of each party; the financial resources of each party; the earning capacities, educational levels, vocational skills, and employability of the parties; and the sources of income available to the parties. Id. Additionally, “[i]n awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.” § 61.08(8), Fla. Stat.

The trial court’s failure to include in the final judgment the requisite findings of fact relative to the factors enumerated in section 61.08(2) generally constitutes reversible error because, in most cases, it precludes meaningful appellate review. Winder v. Winder, 152 So.3d 836, 840–41 (Fla. 1st DCA 2014) (reversing the permanent alimony award to the wife because the final judgment lacked sufficient factual findings as required by section 61.08 where the trial court did not make findings regarding the wife’s current living expenses, the parties’ financial resources and the sources of income available to them, the value of the assets and liabilities distributed to each party, the standard of living established during the marriage, and each party’s contribution to the marriage, and reversing for the additional reason that the trial court failed to expressly find that no other form of alimony would be appropriate); see also Watson v. Watson, 124 So.3d 340, 343 (Fla. 1st DCA 2013) (noting that the trial court failed to include in the final judgment all the findings required by section 61.08(2) and directing the court to make those findings on remand); Galstyan v. Galstyan, 85 So.3d 561, 564 (Fla. 4th DCA 2012) (“In determining ability to pay, the trial court must make specific findings of fact regarding the paying spouse’s financial resources.”); Gray v. Gray, 103 So.3d 962, 964–67 (Fla. 1st DCA 2012) (reversing the alimony award because the final judgment failed to include sufficient factual findings).

Further, the trial court may award retroactive alimony when appropriate, but it must be based on the receiving spouse’s need and the paying spouse’s ability to pay. Valentine v. Van Sickle, 42 So.3d 267, 274 (Fla. 2d DCA 2010) (noting that the trial court made no findings about the parties’ incomes between the time of the divorce filing and the entry of the final judgment as required by section 61.08); see also Vitro v. Vitro, 122 So.3d 382, 385 (Fla. 4th DCA 2012).

Lastly, a trial court’s award of attorney’s fees is reviewed for an abuse of discretion and is controlled by section 61.16, Florida Statutes. Mitchell v. Mitchell, 141 So.3d 1228, 1229 (Fla. 1st DCA 2014). Section 61.16(1), Florida Statutes (2013), provides that “[t]he court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this․” The purpose of section 61.16 is “ ‘to ensure that both parties will have a similar ability to obtain competent legal counsel.’ “ Broemer, 109 So.3d at 290 (quoting Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997)). “A trial court must determine the ultimate issue of fees and costs after the dissolution proceeding concludes, based on the parties’ respective financial circumstances.” Id.

“[A] trial court reversibly errs when it awards attorney’s fees without making the requisite findings as to the proper amount,” “ ‘even if there is competent, substantial evidence to support the award.’ “ Mitchell, 141 So.3d at 1229 (internal citation omitted). An order to pay a portion of the spouse’s attorney’s fees must be based on the requesting party’s need and the other party’s ability to pay the fees. Winder, 152 So.3d at 842. “ ‘The trial court must [ ] make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors.’ “ Id. (internal citation omitted). “ ‘A dissolution order directing a party to pay the other party’s fees and costs, which recites simply that the total amounts “are reasonable time spent and hourly rates,” is insufficient under [Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985) ].’ “ Id. (internal citation omitted); see also Mitchell, 141 So.3d at 1229–30 (reversing in part and remanding to allow the court to make the requisite findings where the final judgment merely recited that the hours and hourly rate in the wife’s affidavit of attorney’s fees and costs were reasonable, but did not make specific findings as to the number of hours expended by the wife’s attorney or whether those hours were reasonable, as required under Rowe ); Bradham v. Bradham, 120 So.3d 1274, 1276 (Fla. 1st DCA 2013) (reversing and remanding the attorney’s fees award where the trial court found that the former wife had a need for a contribution to her attorney’s fees and costs and the former husband had an ability to pay, the former wife submitted an affidavit from her attorney’s law firm attesting to the fees and costs incurred and detailed records of the hourly rate and hours expended, but there was no indication that the trial court considered the Rowe factors); Ard v. Ard, 765 So.2d 106, 107 (Fla. 1st DCA 2000) (reversing and remanding the attorney’s fees award where there was competent, substantial evidence in the record to support the award, but the trial court failed to make factual findings regarding the total number of hours expended by the appellee’s attorney, the hourly rate, or the reasonableness of the fee).

Here, the trial court failed to make any findings of fact with regard to the Former Wife’s need for alimony and the Former Husband’s ability to pay, the parties’ incomes and expenses, and the factors listed in section 61.08(2)(a)-(j); as such, we are constrained to reverse the alimony award, especially in light of the conflicting evidence that was presented during the hearing about her monthly expenses and his income. We likewise must reverse the attorney’s fees award because the trial court did not make any findings of fact about the parties’ need and ability to pay, the attorney’s hourly rate, the number of hours reasonably expended, the reasonableness of the fee, and the appropriateness of reduction or enhancement factors.

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When is Alimony Modifiable?

Most types of alimony available under Florida law can be modified where there has been a substantial change in circumstances.  Modification of alimony is based on need and ability to pay.

Examples of situations where a modification of alimony may be warranted include a substantial reduction in the income of the party paying alimony, an increase in the income of the party receiving alimony, a reduction in the expenses of the receiving party, or  the receiving party entering into a new supportive relationship since the judgement or agreement awarding alimony.  The court may consider if a change is temporary or permanent, whether it is voluntary or involuntary, and other such factors in making its determination. A modification of alimony can be a downwards or upwards modification.

The statutory right to modification of alimony, unless specifically waived, is as a matter of law incorporated into a judgment or agreement awarding alimony. However, modification of alimony can be waived in an agreement establishing alimony if explicitly stated in an agreement.

It the type of alimony awarded in your case is modifiable and modification is warranted by the circumstances in your case alimony may even be reduced to zero. The modification of alimony is meant to be retroactive to the date of the filing of the alimony modification action.

If you need help in a modification of alimony case or accessing if you are a good candidate to seek a modification of alimony contact us for a consultation (786) 539-4935.