Is Alimony a Moving Target?

Welcome to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys which spans Florida from Tampa to Orlando and Miami.

In this edition, I will be discussing the unpredictable world of alimony with our attorneys. While alimony reform is still zig zagging its way through the Florida legislature again, at least if and until the bill passes things will remain the status quo. Alimony decisions are still being made in a legal climate where permanent alimony still exists and the range of alimony awards varies from judge to judge.

I discussed all things alimony with our attorneys across Florida including Alberto Ayo, Crystal Phillips, and Jeana Vogel in Tampa; Jennifer Schulte and Jason Ponder out of Orlando; and in New Port Richey, Jeremy Simons and Bruce Przepis. Here is what we discussed:

Is there anything people can or can’t count on when it comes to alimony?

Right now you still have the length of the marriage issue so it’s based on 17 years and up of marriage you may not get permanent alimony but it’s presumed that you are going to pay if you’re the bread-winner. If it’s permanent, that only ends on death, re-marriage, that sort of thing. So it’s forever and ever and ever. If the marriage is between 7 and 17 years, it’s durational alimony so it can be anywhere from anything up to the length of the marriage depending on need and ability to pay. The problem is alimony is very hard to predict. I had a judge tell me recently that you will get ten judges in a room, same facts, same case, and you will get ten different alimony rulings. And that is true. It’s just the way it is. It’s really discretionary, there is no formula and that’s the problem. So the judge will look at what’s fair and equitable based on what people earn and what the needs are, and what is the ability to pay, and come up with a number.

There are certain limitations that have been implemented in Florida regarding alimony. A very important limitation is the length of marriage. However, notwithstanding the limitations that have been placed on alimony, it’s important for people to understand that Florida law does not give precise alimony awards. The awards are not black and white; there is no formula that gives a certain exact amount of alimony. However, alimony is judged on a number of factors and it is much less formulaic that child support. At trial, these factors have to be presented to the court in an articulate, logical, scholarly fashion, in order for an individual to increase the likelihood of maximizing an alimony award. If a case goes to trial and an individual is not represented in a competent and aggressive fashion, that individual runs the risk of being awarded an alimony award that is either substantially less than warranted, or not at all.

No there’s nothing for sure in alimony right now. Even if you did get something that was for sure – someone, for example, could still their job and you are back in court. I never feel like there is any for sure. Depending on another person and their income, there’s nothing for sure about it.

Every case is different. We continually present in court in alimony cases need versus ability to pay and that is the key. You have to prove that you are a needy spouse and that the other spouse has the ability to pay. And what that means is when we look at the financials the one spouse makes a whole lot more than the other side. And so it’s a contrast and compare situation. And if you can demonstrate to the court that one spouse makes much more than the other spouse there is going to be alimony. And it can get complicated because in a short-term marriage which you have two years to seven years you are probably not going to see permanent alimony but there are other types you may see. Standard of living can also be a factor. Are these people that eat out every night? Do they always go on vacations and drive fancy cars? Or did they live paycheck to paycheck real modestly? So it’s kind of a combination of all those factors. There’s really no hard and fast rule.

The court is going to look at the length of the marriage, the need and ability to pay, and those are the bare minimum things the court is going to look at. Until this new legislation that is proposed passes, it all depends on the county and the judge. You can’t count on anything really. I have gotten people with a two year marriage alimony and I have seen people who have been married 50-years have none. So it’s all up in the air. It’s like the Wild West, you know.

What are some of the routes you can take to modify you alimony?

It’s based on a substantial change in circumstances that include significant increases and decreases of the income of the payor. It also includes issues of co-habitation. However, modification is not a simple matter. That is why an individual must do his best and put as many resources – emotional, intellectual, and financial – in order to maximize the alimony awarded in the original dissolution. There should be a substantial change in circumstances or you run the risk of adverse consequences from the court. Before entering into a modification an individual should have a good-faith belief that there has been a substantial change in circumstances. Our system allows for the change because for public policy reasons our system does not want people enslaved to a payment that they have no reasonable ability to pay.

It’s not going to happen just because you feel like you deserve it. You can’t just go into court and say ‘I think this is unfair’ or ‘my ex-spouse doesn’t deserve this.’ There has to be a substantial change in circumstance. If you lose your job, if you retire, those sorts of major changes are necessary to prove you will have difficulty paying the existing alimony.

Are there risks in seeking to modify an alimony award?

There can be. What you are really doing is re-opening your case and going back into the divorce. So sometimes in seeking a modification you can end spending as much as the original divorce and may not be successful.

Well, I have a client right now who filed for a modification with a previous attorney but documents that needed to be filed weren’t, so after a year or so the court threw out the modification request so now my client owes $75,000 in alimony. As the new attorney I have to settle that before I can seek to modify his alimony again. So it can be an awkward situation without a good attorney.

What about ending alimony, my guess it wouldn’t be smart to go in to end or modify your alimony just because you aren’t happy, right?

Yes, you need to have a substantial change in your circumstances. You have to show it is permanent, that it’s not an isolated incident and that you’re not going to recover. Let’s say you make $100,000-a-year and lose your job and get a job making $40,000 it comes down to do you have the ability to pay. Same goes with need. If someone’s salary goes up do they still have the need to receive the existing alimony amount? It all comes down to those factors.

You always have the possible cost of the attorney’s fees if you lose. And you always have the risk they may ask for an upward modification, so you could be in that situation. But it just depends. It’s very fact specific so it’s hard to say what the risks would be in a general sense.

Do you have hopes for alimony reform this year?

I would like to see the permanent alimony disappear. I think there are only select situations where it should actually happen. I feel like it is being misused and it’s not the intent of the original law. I see situations where, it’s mainly men, are paying permanent alimony to a woman who at the time did raise the children, wasn’t able to earn, but has now chosen to only work part-time and kind of hangout and do their thing while the ex-husband is continuing to work to try to meet that alimony obligation. I just don’t think it’s fair and equitable. Something needs to change. I don’t know how to fix it, but I’m not happy with the current state of the law.

Right now we expect alimony reform to pass and I’m hoping it passes, too. It is going to give us such a better sense of where judges are going to come down in alimony cases.

Great information! But somehow I feel like I traveled back to my original question – whether alimony is a moving target. Based on the consensus of the group I would definitely vote yes to that question. Thank you once again for your contributions. Meanwhile we hope to see our readers come back to the Ayo and Iken roundtable. See you then !