by Victoria M. Ho and Jennifer L. Johnson
Alimony is one issue of several that arises in a marriage dissolution action. The flowchart at the end of this article is an aid to illustrate the interplay between equitable distribution and the several different types of alimony. Each type of alimony is suitable to a specific, appropriate situation. This flowchart intends to clarify the analytic process in determining whether alimony of any type is appropriate, and if so, which type or types.
Before any award of alimony can be ordered by the court, equitable distribution must take place. Once the assets have been equitably divided, the court has several choices with respect to alimony. The court can order permanent periodic alimony, lump-sum alimony, bridge-the-gap alimony, rehabilitative alimony, no alimony at all, or a combination of different alimony types.
Permanent, periodic alimony, although usually awarded to meet the needs of a dependent spouse, can also be used to balance the inequities that might result from property division in a final judgment.1 Lump-sum alimony can also be used for this purpose.2
More commonly, alimony is used to provide support to the financially dependent spouse. Id. Alimony is based first on need and ability to pay, therefore an award of alimony is not appropriate when there is no need for support by the requesting spouse or when there is no ability to pay by the other spouse. The court must consider various factors when it determines need, such as the parties’ earning ability, age, health, education, duration of marriage, standard of living enjoyed during the marriage, and the value of the parties’ estates. Id. at 1201–02; F.S. §61.08 (2002).
Other factors the court may consider are what the paying spouse is capable of earning and whether the requesting spouse is able to contribute to his or her own support; whether the requesting spouse’s needs will be met through equitable distribution, and whether as a result of the marriage there was any harm done by the marriage itself to the requesting party’s ability to earn enough to support himself or herself.3 The concept of harm to the requesting spouse due to the marriage is also set forth in the American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (2002), §5.02.
The American Law Institute suggests a policy for compensatory payments rather than alimony. This is a payment to compensate the receiving spouse for loss of earning ability caused by the marriage. The American Law Institute proposes five bases for compensatory payments, including the loss in living standard experienced at dissolution by the spouse who has less wealth; an earning-capacity loss incurred during the marriage from one spouse’s disproportionate share of the care of children or from the care provided to a sick, elderly, or disabled third party; the loss incurred when the marriage is dissolved before a spouse realizes a fair return from his or her investment in the other spouse’s earning capacity; and an unfairly disproportionate disparity between the spouses in their abilities to recover their premarital standard of living after the dissolution of a short marriage. Id. at §5.03.
Each factor interplays with the other factors in the alimony analysis. For instance, in a short-term marriage, the standard of living during the marriage is not generally given much weight, whereas in a long-term marriage that factor can affect the decision to award permanent alimony.4 Similarly, disparity in income is not sufficient to justify a permanent alimony award when the wife is young and her earning capacity has not been impaired as a result of the marriage. Id. When the court considers need and ability to pay for purposes of awarding alimony, it can impute income to a spouse when it finds that he or she has failed to use his or her best efforts to earn income.5 Imputation of income can be applied to either or both spouses.
In a long-term marriage, there is a presumption in favor of permanent alimony. The presumption is rebuttable, although neither age nor a spouse’s ability to earn some income rebuts that presumption.6 Each district has its own standard for how many years constitute a long-term marriage; however, the marriage must last at least 14 years to be recognized as long term.
The Second District has explicitly held that 14 years is a long-term marriage.7 In Knoff, the court found that it was an abuse of discretion to fail to award permanent alimony after a 13 ½ year marriage; however, it cautioned that although Cardillo characterized a 14-year marriage as “long term,” it construed that case to mean a marriage of that duration plus other factors discussed in that case warranted permanent alimony, not that the 14 years, standing alone, warranted permanent alimony. Id. at 169.
In the Fifth District, the court was “reluctant” to define a 15-year marriage as long term, finding a marriage of that length to be in the grey area.8 Several of the districts define a 17-year marriage as long term, including the Third District.9 A 14-year marriage is in the grey area in the Third District.10
The Fourth District also found that a 17-year marriage was more on the side of a long-term marriage than one in the grey area.11 For the First District, a long-term marriage falls somewhere between 12 years, which is neither a short-term nor long-term marriage, and 18 years, which is recognized as a long-term marriage.12
In grey area marriages, defined as marriages which are neither short-term nor long-term, there is no presumption for or against permanent alimony.13 Some considerations in whether permanent alimony will be awarded include an agreement between the parties for one spouse to stay home with the children and whether the requesting spouse has a mental or physical disability affecting his or her earning potential. Where a marriage is in the grey area and when permanent alimony is justified and awarded, the amount of the award can also be in the grey area. The general rule that the payee spouse should be afforded a lifestyle commensurate to that of the marriage does not necessarily apply. Id.
For an award of permanent alimony, the court must evaluate the statutory factors set forth in F.S. §61.08.14 Other considerations for permanent alimony are whether there was an agreement between the parties that one spouse would stay home with the children and whether, as a result of the marriage, the requesting spouse’s ability to earn enough to support himself or herself has been damaged in any way.
The amount of alimony is a key issue and is determined by the needs of the receiving spouse and the ability to pay of the paying spouse, therefore the lifestyle of the parties during the marriage is a major factor.15 However, the award cannot be so high as to cause the payor to be unable to meet his or her own needs.16 An alimony award that is over 50 percent of the payor’s income has been considered too high.17
After an award of permanent alimony is made, if circumstances direct, the court has the option to order the payor spouse to obtain life insurance to secure the alimony award.18 The circumstances of the parties dictate whether the court will order the paying spouse to obtain life insurance or provide other security for the support in the event of his or her death.19 When the payor spouse’s death will jeopardize the payee spouse’s financial well-being, it is appropriate for the court to award a form of security for the alimony award. Id. at 1268.
Lump-sum alimony can be awarded to either effectuate the division of property or to provide for support.20 When lump-sum alimony is used for support, the court must make specific findings of special circumstances to warrant such an award.21 In particular, the payor spouse must be able to pay the lump-sum award without creating a financial difficulty in his business or otherwise.22 Lump-sum alimony can be used as a tool to accomplish permanent alimony, rehabilitative alimony, or bridge-the-gap alimony.23 A lump-sum alimony award can be accomplished in periodic payments.24
Bridge-the-gap alimony is a form of lump-sum alimony intended only for short-term assistance, and should not be awarded for more than two years duration. It is useful when the parties do not have other assets which can be used for support and one party needs assistance in the transition from married to single status. Bridge-the-gap alimony is intended to be utilized for legitimate, identifiable short-term needs, such as to meet basic living requirements. The award must be reasonable and the supporting spouse must have the ability to pay.25
Finally, the court can also award rehabilitative alimony. Rehabilitative alimony can be used alone or in conjunction with permanent alimony. In order for the court to award rehabilitative alimony, the party requesting that type of support must provide the court with a rehabilitative plan which includes the objective of the rehabilitation, the areas in which rehabilitation is desired, and the actual amount of rehabilitative alimony necessary.26
There are no rote rules or bright lines which define, in each situation, whether alimony is appropriate and if so, what kind. None of the statutory factors in F.S. §61.08, standing alone, justifies an alimony award. All the factors must be considered as a whole. An analysis of the entire marital situation must be done, as the remedies of lump-sum alimony, permanent alimony, and rehabilitative alimony, bridge-the-gap alimony, child support, and special equities in equitable distribution are interrelated and are part of an overall picture. Only upon review of the entire situation can a trial or appellate court make an equitable decision.
1 Hamlet v. Hamlet, 583 So. 2d 654 (Fla. 1991).
2 Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1980).
3 Segall v. Segall, 708 So. 2d 983 (Fla. 4th D.C.A. 1998).
4 Segall, 708 So. 2d at 987.
5 Smith v. Smith, 737 So. 2d 641, 644 (Fla. 1st D.C.A. 1999); LaFlam v. LaFlam, 854 So. 2d 809 (Fla. 2d D.C.A. 2003).
6 Hill v. Hooten, 776 So. 2d 1004, 1007 (Fla. 5th D.C.A. 2001).
7 Cardillo v. Cardillo, 707 So. 2d 350 (Fla. 2d D.C.A. 1998); Knoff v. Knoff, 751 So. 2d 167 (Fla. 2d D.C.A. 2000).
8 Young v. Young, 677 So. 2d 1301 (Fla. 5th D.C.A. 1996).
9 Cruz v. Cruz, 574 So. 2d 1117 (Fla. 3d D.C.A. 1990).
10 Levy v. Levy, 2003 WL 22240196 (Fla. 3d D.C.A. 2003)
11 Moorehead v. Moorehead, 745 So. 2d 549 (Fla. 4th D.C.A. 1999).
12 Grimes v. Grimes, 770 So. 2d 293 (Fla. 1st D.C.A. 2000); Bamonte v. Bamonte, 824 So. 2d 1029 (Fla. 1st D.C.A. 2002).
13 Pollock v. Pollock, 722 So. 2d 283 (Fla. 5th D.C.A. 1998).
14 a) The standard of living established during the marriage.
b) The duration of the marriage.
c) The age and the physical and emotional condition of each party.
d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
f) The contribution of each party to the marriage, including, but not limited to services rendered in homemaking, child care, education, and career building of the other party.
g) All sources of income available to either party.
The court may consider any other facto necessary to do equity and justice between the parties. Fla. Stat. ch. 61.08 (2002).
15 Mallard v. Mallard, 771 So. 2d 1138 (Fla. 2000).
16 Rashotsky v. Rashotsky, 782 So. 2d 542 (Fla. 3d D.C.A. 2001).
17 O’Conner v. O’Conner, 782 So. 2d 502 (Fla. 2d D.C.A. 2001).
18 Levin v. Levin, 745 So. 2d 1077 (Fla. 1st D.C.A. 1999).
19 Ruberg v. Ruberg, 2003 WL 22514391 (Fla. 2d D.C.A. 2003); Sasnett v. Sasnett, 679 So. 2d 1265 (Fla. 2d D.C.A. 1996).
20 Tronconi v. Tronconi, 466 So. 2d 203 (Fla. 1985).
21 Levin, 745 So. 2d at 1079.
22 Canakaris, 382 So. 2d at 1201.
23 Levin, 745 So. 2d at 1079
24 Canakaris, 382 So. 2d at 1201.
25 Borchard, 730 So. 2d at 748.
26 Kalmanson v. Kalmanson, 796 So. 2d 1249 (Fla. 5th D.C.A. 2001).
Victoria Ho received her B.A., magna cum laude, from the University of Minnesota in 1979 and her J.D. from the University of Wisconsin Law School in 1986. She is board certified in marital and family law. Ms. Ho is 2004–05 president of the American Academy of Matrimonial Lawyers, Florida Chapter, and past president of the Collier County Women’s Bar Association and the Collier County Bar Association, Family Law Section.
Jennifer L. Johnson graduated from Emory University in 1987 with a B.A. in anthropology and religion, and cum laude from Florida State University College of Law in 2001. Currently, she is an associate attorney at Bird & Leinback in Tallahassee, where she practices marital and family law. She is a member of the Family Law Section, the Tallahassee Bar Association, and the Jefferson County Bar Association.
This column is submitted on behalf of the Family Law Section, Evan R. Marks, chair, and Kristen Adamson-Landau, editor.