The alimony laws of Florida are confusing and difficult to understand. There are no set calculations or guidelines similar to how child support is calculated, and if you ask five (5) different attorneys, you might get five (5) different explanations. This means that divorcing couples in Florida experience significant uncertainty. What follows is a breakdown of the basics you need to know about alimony as you contemplate a divorce.
Alimony or spousal support is a financial payment made by one spouse to another not only during the divorce process, but also after the divorce is concluded. Alimony is designed to assist the recipient spouse with the needs and necessities of life as established by the standard of living during the marriage. Each household is different, and no two (2) alimony claims are alike. Florida does define several types of alimony and provides specific facts for a Court to consider when awarding alimony to one spouse.
The taxability and deductibility of alimony has changed with the passing of the Tax Cuts and Jobs Act. For divorce cases settling after December 31, 2018, it is no longer an option for alimony to be taxable to the recipient spouse or deductible by the payor spouse if the case is a new filing. If you were divorced prior to December 31, 2018, and you have taxable deductible alimony, that does not change. In fact, in the event of a modification, you will still be able to elect to pay or receive taxable deductible alimony.
The trend in Florida and other states is for all spouses to be or work towards being self-supporting. Most spouses are expected to re-enter the work force if they are not working at the time of the divorce. There are always some exceptions, and whether or not alimony will be paid or received is determined on a case-by-case basis. Before determining whether one spouse pays alimony to another, the Court must determine that one spouse has a need. If a need is established, then the Court must determine that the other spouse has an ability to pay. There are several factors that must be evaluated to determine what type of alimony a spouse may receive and for how long. The factors include, age of each spouse, length of marriage, whether a spouse gave up a career to raise a family or the spouse’s contribution towards the marriage, the financial resources of each spouse, earning capacities of each spouse, incomes of both spouses, the lifestyle maintained by the parties during the marriage, and others. Your case will be determined by evaluating each of these specific factors in connection with the facts and circumstances of your marriage.
So how is this determination made? You and your spouse will both prepare and file a financial affidavit. A financial affidavit is a document that states your monthly income and assets, and also lists your assets and liabilities, both marital and nonmarital. For the recipient spouse, the need is the deficit that spouse has each month after using his or her earned income to pay expenses. For the payor spouse, the ability to pay is the surplus that spouse has each month after paying expenses out of his or her earned income. In some cases, the recipient spouse may have a need that is greater than the payor spouse’s ability to pay. A Court may order alimony that is less than what is needed, and also more than what can be afforded.
Sometimes a spouse will choose not to become employed or re-employed. In that event, income may be imputed to the unemployed spouse. The amount of income to be imputed can start at minimum wage and will increase based upon that spouse’s prior earnings within the last three (3) years or based upon what that spouse could earn if that spouse returned to work. Often times, a vocational evaluator is used to assist in determining what the likely income is, if an unemployed or underemployed spouse worked full-time. A payor spouse can be imputed income as well, if he or she has lost employment during the divorce process, as a part of divorce planning, or if they were terminated because of their own behavior.
Your attorney can help you figure out what to expect in the calculation and award of alimony in your specific case. It is not cut and dry, and presenting an alimony claim or defense is complex and nuanced.