Articles Posted in Alimony

An alimony reform bill was recently introduced in the Florida legislature.  This bill will have a significant impact on how alimony will be awarded in Florida if it is passed and signed by the Governor.  The bill will apply to all initial petitions for dissolution of marriage that are filed or pending on July 1, 2023, and to supplemental petitions for modification of alimony.  The following is a brief synopsis of how alimony will be awarded in Florida under this new legislation.

First, the bill eliminates permanent alimony.  In its place, will be four types of alimony.  They will be temporary, bridge-the-gap, rehabilitative and durational alimony.  Courts may order alimony to be paid in a lump sum or as periodic payments.

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

Durational alimony provides a recipient former spouse with financial support for a specific period of time.  In Florida, marriages are classified into three categories.  They are short term marriages, moderate term marriages, and long term marriages.  Short term marriages last less than 7 years.  Moderate term marriages last less than 17 years.  Long term marriages exceed 17 years.  Durational alimony may be awarded when there is a need for support after a short term or a moderate term marriage.  Durational alimony may be awarded after a long term marriage when the recipient spouse will no longer have a need for support after a specific period of time.

In a recently decided case captioned Rea-Manna v. Manna, the wife appealed the trial court’s award of durational alimony.  The Florida Court of Appeal agreed with the wife, and reversed the lower court’s ruling.  The appellate court began its analysis with a discussion about when permanent periodic alimony was appropriate awarded.  The purpose of permanent alimony is to meet the needs of the recipient spouse as they were established by the parties during the course of their marriage.  Permanent alimony is appropriate when recipient spouses are unable to meet their needs after a divorce is granted.  There is a presumption that permanent alimony should be awarded when the parties have been in a long term marriage.  This presumption is rebuttable.  Permanent alimony will not be awarded when recipient spouses have the ability to meet their needs without financial assistance.

Trial courts in Florida may award durational alimony after the termination of long term marriages when spouses will no longer have the need for ongoing support after a specific period of time.  When spouses no longer have a need for ongoing support in order to meet their needs, Florida trial courts may award durational alimony.

There are four types of alimony in Florida.  They are permanent alimony, durational alimony, rehabilitative alimony and bridge-the-gap, alimony.  Trial courts may award one or any combination of these four types of alimony.

In a recent case captioned Ogle v. Ogle, the Florida Court of Appeal described the purpose of these four different types of alimony.

The purpose of bridge-the-gap alimony, is to provide funds to assist a person in making the transition from being married to being single.  Its purpose is to provide funds for identifiable, legitimate short-term needs.

A recently decided alimony case captioned Rodolph v. Rodolph involved two appeals by the husband.  Since both appeals involved the same parties and the same facts, the Florida Court of Appeal consolidated the cases into one appeal.  In Rodolph v. Rodolph, the husband appealed the lower court’s order denying his Supplemental Petition for Termination or Modification of Alimony.  Additionally, the Husband appealed the award of $39,000.00 in attorney’s fees to his wife.

In this case, the husband and wife were married for 33 years.  At the time of the divorce, the Husband had been a corrections officer for the Broward County Sheriff’s Office for twenty-four years.  In the final judgment of dissolution, the wife was granted permanent periodic alimony and a portion of husband’s retirement funds.  Husband filed a Supplemental Petition to Either Modify or Terminate Alimony.  Husband’s Supplemental Petition for Modification of Alimony alleged that husband did not have the ability to continue to pay alimony because he was involuntarily unemployed due to his heart condition, his neck and back problems, and carpal tunnel syndrome in his wrist and arm.  Husband also alleged that his wife no longer had a need for alimony because she received the first share of husband’s retirement funds, she was receiving disability payments and her monthly expenses were reduced. While Husband’s Supplemental Petition for Modification was pending, Wife filed a Motion for Contempt of Court against Husband because Husband ceased making alimony payments.

At the hearing on husband’s Supplemental Petition for Modification of Alimony, husband testified that he was receiving social security payments, but was earning no income.  He also testified that he remarried and was living with his new wife and her children. Husband purchased a new home and incurred various expenses.  In order to meet his expenses, husband withdrew $3,500 per month from his retirement account.  Wife testified that her expenses for rent, association fees, water, garbage, insurance, cable, and donations to religious organizations exceeded her income.

Durational alimony terminates when either of the parties dies or the recipient of alimony remarries.

In a unique case captioned Dills v. Perez the parties’ marital settlement agreement contained a provision that stated that the former husband’s obligation to pay durational alimony to the former wife was non-modifiable.  At the time that the parties got divorced, they entered into a marital settlement agreement that was incorporated into their final judgment of dissolution of marriage.

The parties’ marital settlement agreement required the former husband to pay durational alimony to the former wife for a period of forty-eight (48) months.  Additionally, the parties’ marital settlement agreement contained a provision that the former husband’s obligation to pay durational alimony was non-modifiable.  Although the parties’ marital settlement agreement contained a provision that the former husband’s alimony obligation would not terminate upon the former husband’s death, it did not specifically discuss the effect that remarriage would have on the former husband’s durational alimony obligation.

In order to determine whether a voluntary retirement is reasonable, Florida trial courts are required to consider the age of the payor, the payor’s health, and the payor’s motivation for retirement. Additionally, Florida trial courts are required to consider the type of work that is performed by the payor and the age at which other people who are engaged in the same type of work normally retire. Sixty-five is the presumptive age of retirement in Florida

In a recently decided alimony case captioned Tanner v. Tanner, the Husband appealed the trial court’s order denying his Supplemental Petition for Modification of his divorce decree. The parties were divorced in January 2016. The final judgment of dissolution required the Husband to pay permanent periodic alimony to the Wife. In September 2018, the Husband filed a Supplemental Petition to Modify the divorce decree in which he sought to eliminate or reduce the amount of his alimony payments.

In the Husband’s Supplemental Petition for Modification of Alimony, the Husband stated that his employer terminated his employment, and that his medical condition precluded him from finding similar employment.  The trial court denied the Husband’s Supplemental Petition for Modification of Alimony based upon the fact that it found the Husband’s retirement at age 64 to be unreasonable. In his appeal, the Husband argued that his retirement was reasonable based on his age and failing health.

In order to impute income to a voluntarily unemployed or underemployed spouse, the party seeking to impute income must prove that there are current and available employment opportunities for which the spouse is qualified.  The spouse’s employment potential and probable earnings are based upon the spouse’s recent work history, occupational qualifications and the prevailing earnings level in the community.

In a case captioned Douglas v. Douglas, the husband appealed several of the rulings that the trial court made in the Final Judgment of Dissolution of Marriage.  The parties were married for eight years.  They were the parents of two children.  The wife was a stay-at-home mother, who took care of the parties’ children during the course of the marriage.  She did not work outside of the marital home during the marriage.  After the parties separated, the wife unsuccessfully applied for over thirty jobs during the parties’ separation.

The husband was a professional basketball player. During his career, he played for the New York Knicks, Houston Rockets, Sacramento Kings, Golden State Warriors and the Miami Heat.  Recently, the husband played on a number of European teams.  The wife filed the Petition for Dissolution of Marriage.

Alimony payments may be reduced or terminated when a former spouse enters into a supportive relationship.  The payor bears the burden to prove that a supportive relationship exists.  Some of the factors that Florida courts assess in determining whether a supportive relationship exists are as follows:

First, whether the recipient and the cohabiting party have held themselves out as a married couple.

Second, the amount of time that the parties have resided together in a permanent residence.

An alimony case involving the reimbursement of business expenses was recently decided by the Florida Court of Appeal in a case captioned Ortega v. Wood.  In Ortega v. Wood, the husband was an optician who owned an optical business with his mother.  The wife sought to impute income to the husband for in-kind benefits and business expense reimbursements that were provided to the husband by his business.  The optical business provided the husband with an apartment at no cost and paid for his personal expenses, including his dentist appointments, his doctor’s appointments, his massages, his lab tests, his pharmaceuticals, his lawn mower, and products that he ordered from GNC.

In reaching its alimony determination, the trial court did not consider the business’ provision of the husband’s apartment and the payments for the husband’s medical appointments, dental appointments, lab tests, massages, GNC products, and pharmaceuticals to be income. Because the husband testified that the business provided all of its employees with the same reimbursements, the trial court ruled that these payments were reasonable business expenses and did not consider them to be income when it calculated the husband’s alimony obligation.

The wife appealed the trial court’s Final Judgment of Dissolution of Marriage to the Florida Court of Appeal.  The Florida Court of Appeal reversed the trial court and held that the trial court should have included the in-kind payments and expense reimbursements that husband received from the optical business in determining the husband’s alimony obligation.  The appellate court pointed out that under Florida law, for purposes of calculating alimony, “income” is defined as any type of payment, including, without limitation, salary, wages, bonuses, commissions, disability benefits, worker’s compensation, retirement benefits and annuities, dividends, pensions, interest, trusts, royalties, and any other payments made by a private entity, person, or governmental entity.

Florida’s alimony statute requires courts to consider the standard of living that was established by the parties throughout the course of their marriage.  Its purpose is to provide for the needs and necessities of life for the recipient spouse as they were established during the course of the parties’ marriage.  It is one of eleven statutory factors that Florida Courts are required to consider in awarding alimony.

In a recently decided case captioned Morgan v. Morgan, the Florida Court of Appeal ruled that the size of an alimony award is based upon the standard of living that was established by the parties during the course of the marriage, and not the parties’ postseparation lifestyle.

In Morgan v. Morgan, the husband appealed the final judgment of dissolution of marriage.  He challenged the trial court’s alimony award and the equitable distribution of the parties’ assets.  The Florida Court of Appeal reversed both of the trial court’s rulings on these issues.