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11/01/12 It's The Law: Many Types Of Alimony

Question:

Some of my friends have recently been divorced. One got permanent alimony. Another got rehabilitative alimony, and yet another got lump sum alimony. What are the differences between these various types of alimony in Florida?

Answer:

The primary statute addressing alimony in Florida is §61.08, Fla. Stat. The statute confirms a court may grant alimony to either party which may be bridge-the-gap, rehabilitative, durational or permanent, or any combination of those forms of alimony. The statute authorizes periodic payments or payments in lump sum or both.

The first step in determining whether to award alimony is the court making a finding that one party has an actual need for alimony and, if need is shown, that the other party has the ability to pay. The statute mandates consideration of ten factors in determining alimony, with the tenth factor being “any other factor necessary to do equity and justice between the parties.” The court may also consider adultery of either spouse. In addition to alimony, the court may order the party obligated to pay alimony to purchase and maintain life insurance or a bond to secure the alimony award.

Permanent alimony is perhaps the best known. It is intended to provide the needs and necessities of life as they were established during marriage of the parties for a party who lacks financial ability to meet his or her needs. That makes standard of living during the marriage a very important factor in the permanent alimony equation.

The statute makes it easiest to obtain permanent alimony in a long term marriage. A marriage of 17 years or longer is presumed to be a long term marriage and the court is to award alimony in long term marriages if the criteria are met. A moderate term marriage is a marriage lasting between 7 and 17 years. For permanent alimony in a moderate term marriage, the requesting spouse must prove an award is appropriate by clear and convincing evidence. Clear and convincing evidence is a much more difficult standard than the usual greater weight of the evidence in a civil case. Permanent alimony is only to be awarded for a short term marriage (less than 7 years) if the judge makes a written finding of exceptional circumstances.

Permanent alimony terminates upon death of either party or upon remarriage of the recipient. It may be modified or terminated based on a substantial change of circumstances or if the recipient enters a financially supportive relationship. In awarding permanent alimony, the judge must make a finding that there is no other suitable alimony.

Durational alimony is similar to permanent alimony, except that the court also sets an end date for final payment in addition to the possibility of termination if either party dies or the recipient remarries. It may be awarded if the court finds there is no ongoing need for support on a permanent basis. Florida courts prefer durational alimony over permanent alimony because of a theory that alimony should never last longer than the length of the marriage. Durational alimony will usually be for a set period of time that is actually less than the duration of the marriage.

Rehabilitative alimony is to allow the recipient to redevelop previous skills or credentials or to acquire education, training or work experience necessary to develop appropriate employment skills or credentials. To qualify for rehabilitative alimony, the recipient must show a plan for rehabilitation and not merely a general expression of goals or hope. A desire to change employment field is insufficient where the requesting spouse already has the ability for self support similar to that enjoyed during the marriage. Rehabilitative alimony usually provides bigger periodic payments than permanent or durational alimony because the recipient will either not be working or working at a reduced level while he or she pursues training or education. Rehabilitative alimony is usually of relatively short duration, based upon the plan presented to the court.

Lump sum alimony is alimony paid all at once. The statute makes it clear that lump sum alimony is not actually an additional type of alimony although it is primarily intended to achieve the same goal as rehabilitative alimony. It was originally used most often as a type of property award to reach an equitable distribution of property. With the modern advent of equitable distribution, the courts have not needed lump sum alimony to balance the equities in a divorce case.

Alimony is generally deductible from income of the payor and is taxable to the payee. That can make tax consequences an important consideration, especially when settlement discussions are involved.

Unlike child support awards which are generally set by a statutory formula based on income of the parties, alimony awards remain within the discretion of the judge. Although the judge must consider the statutory factors, judges are given considerable leeway by appellate courts in these determinations. That means good legal advice is important.

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