Is Alimony Appropriate in My Case? Need and Ability to Pay
Every alimony starts with a threshold analysis: That of Need and Ability to Pay.
The Spouse requesting alimony must have a need for alimony. That means we have to look at the requesting spouses income level (actual or imputed) and the reasonable expenses, and see if a need exists. If so, then we look at the other spouses ability to pay alimony.
If the other spouse has discretionary income, then that spouse has an ability to pay.
If there is a need and ability to pay, then we can continue the alimony analysis with the Statutory Factors.
The Spouse that could potentially pay alimony must have the ability to pay.
What Are The Factors the Court Looks At in Determining a Proper Alimony Award?
In fact, Florida’s alimony law is written such that it requires the court to analyze a bunch of different factors when determining what amount of alimony to award.
We have illustrated all of the factors the Court must consider in an alimony award below:
Standard of Living During the Marriage:
All things being equal, the court would like to keep a party any substantially similar standard of living after the divorce as that party was during to be intact marriage.
Traditionally, standard of living was a big factor thought after by the parties using expert such as forensic accountants.
While still important,, these days Courts are less inclined to award the large alimony awards of the past, as public perception and economic reality have reigned in awards.
Duration of Marriage
The Courts look at the duration of the marriage in making alimony awards. The Court defines marriages as either short term, medium term, or long term.
A short term marriage is one that is less than seven years in length. A medium term marriage is one that is seven years or more but less than seventeen years. A long term marriage is one of greater than seventeen years.
The length of marriage is defined as the time of date of marriage until the date of filing for divorce.
The length of marriage is important because it changes the legal standard for analyzing alimony claims.
Contributions to The Marriage:
The courts will also look at the contributions by the needy spouse to the marriage.
While the spouse may not have worked, if the spouse was a homemaker here she may have contributed to the home, raising the children, ironing the clothes, doing the shopping, and all those other important activities in the home that allow the breadwinner spouse to go out there and make money.
If the needy spouse did a great job on this front, then he or she might demand a stronger alimony award then a spouse who did not.
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Age and Physical and Emotional condition of the Parties:
Can the needy spouse get back to work? Or does the need spouse have a health or emotional condition that limits his or her ability to find gainful employment?
Earning Capacities, Educational Levels, Vocational skills, and Employ-ability of the Parties: Similarly, what is the ability of each party to go out and be self-sufficient? Many alimony cases are fought not over whether a spouse can work and earn a living, but rather, how much can he or she earn? Vocational experts can help in preparing to litigate an alimony claim on this factor.
Contribution of Each Party to the Marriage: In an effort to be just, the Court can look back at the living arrangements during the marriage and see how much each party contributed to the home. In Florida, homemaking and child rearing are given as much weight as earning income in the workforce.
Responsibilities of Either Party in Rearing Children: If the parties still have minor children, the projected responsibilities going forward are important considerations in alimony claims.
Tax Treatment of An Alimony Award: There is a big different between a, say, $2000 alimony award that is taxable to the Husband than a $2000 alimony award the is taxable tot he Wife. The Court is required to look at the tax effects of the alimony award on both parties.
All Sources of Income Available to the Parties: Retirement Accounts, social security, regular and recurring gifts. The Court can look at all income sources in determining what alimony award is fair and appropriate under the circumstances.
How do I calculate what an alimony amount will be?
Unlike Child Support, Florida does not provide a formula for alimony that allows us to “crunch” a specific number based on the facts of your case.
While you can’t pin down a specific dollar amount of alimony that the Judge would order,what you can do is sit down with your attorney after the discovery process is complete to determine an alimony range.
You started this by figuring out your best day in court and your worst day in court.
For example, if you were the potential for spouse, your best day in court would be no alimony.
Your worst day in court would be somewhere around your Spouse having more than 55% of the total adjusted net income for both parties.
In other words, your worst day in court would be the court putting you in a substantially worse economic position than your spouse after and alimony award.
Nobody settles cases for their best or worst day in court.
The next step is to figure out what your reasonable settlement range is inside these numbers.
Okay so how do we figure out with the settlement range is going to be?
The reasonable settlement range is based in no small part on the need of the receiving spouse and the ability to pay of the pain spouse.
And alimony award has to make sense for both parties.
And has to be fair.
It wouldn’t make sense and it wouldn’t be fair to order a pay your spouse to pay an amount of alimony that leaves him a hard best to
The spouse paying alimony needs to be able to pay his or her reasonable living expenses before any of alimony amount is ordered.
On the flipside, it wouldn’t make any sense and it wouldn’t be fair to order alimony to a spouse if that spouse really didn’t have a need for it.
So for example, just because one spouse makes a lot more money than another spouse, it doesn’t necessarily stand to reason that the spouse that makes less money should get alimony in a divorce case if that spouse doesn’t need.
To figure out the need and ability to pay of the parties we need to look at the reasonable and accurate budgets for both parties.
In a divorce case, both parties will need to fill out financial affidavits.
Financial affidavits nothing more than a budget any balance sheet that reflects the financial conditions of both parties.
After we have the budget for both parties via the financial affidavits, assuming they are accurate, we can begin to define our settlement range.
What about the type of alimony? How do we figure that out?
Much like the amount of alimony, the courts do not give us a calculation to determine the link of your alimony award.
However the court has put together some guidelines that tell us what type of alimony should be awarded any given case.
No concept is more hotly debated in Florida divorce circles than the Permanent Alimony concept.
Much like it sounds, permanent alimony is a monthly annuity that is paid every month until one of the parties dies or the need spouse remarries or enters into a support relationship.
When the payor spouse retires, he or she can ask the Court to change the alimony, but it does not happen automatically, and there are no guarantees.
Permanent alimony is supposed to be for the needs and necessities of live as they were established during the marriage.
When permanent alimony is not appropriate, the Court may award a durational alimony for a term of years.
The purpose of durational alimony is to provide economic support for a set period of time following a short term or medium term marriage or following a long term marriage if permanent alimony is not appropriate.
The number of years is capped at the number of years of the marriage.
One type of alimony that we see more and more is rehabilitative alimony. Rehabilitated alimony is a financial award to a spouse who may have given up on career aspirations, but has the ability to be rehabilitated in the workplace to become self-sufficient.
Rehabilitative alimony can be used to help a needy spouse get back into the workforce, go back to school, renew licenses, take training in CLE’s, and the like.
Of all the type of alimony’s, this one requires the most specific plan for the Court.
If a spouse is requesting rehabilitative alimony to go back to school for example, that spouse better actually go and get a proposal of school tuition, number of credits to be taken, and the number of semesters needed in order to get a degree.
Rehabilitative alimony is limited to only two years maximum.
Interestingly though, rehabilitative alimony can sometimes lead to the highest monthly awards. That’s because if a spouse is getting rehabilitative alimony, there’s a good chance that they’re not working at all and going to school. Meaning that the pay or spouse will be contributing to the household that does not have somebody working, and expenses for school, books, and the like.
From the payor spouse’s perspective though, the beauty of real rehabilitative alimony is it may put that payee spouse in financial position that might severely reduce or eliminate the need for any additional alimony after that spouse is “rehab”.
Bridge the Gap Alimony
Bridge the gap alimony is a shorter-term alimony that is made to bridge the financial gap between married life and single life.
This is a name for a financial award to a spouse that might need to set up a new home, for example, or two pay for moving expenses.
Bridge the gap alimony is often capped at one year.
This sort of alimony may also be used in conjunction with other forms of alimony mentioned above.