In our last post on alimony we listed the statutory criteria in Florida for determining whether alimony awards are appropriate. We continue this discussion.
Keep in mind that whether alimony awards occur or not first and foremost depends on whether there is a need for support of one spouse and an ability to pay on the part of the other spouse. The criteria previously discussed were the standard of living the couple had achieved during the course of the marriage, the duration of the marriage and the age and physical and mental health of the spouse requesting alimony. (see Part One for more details)
Florida does not have mandatory guidelines for alimony awards that would provide a degree of certainty to divorcing parties. The court (judge) has wide discretion in this matter. It has been said that in 10 different courts you might get 10 different outcomes on the issue of alimony. While this view may be somewhat true, the Florida statutes do set out specific criteria for consideration in determining whether alimony awards will be made.
Earning Capacity and Education For Alimony Awards
One of the criteria listed in considering alimony awards is “The earning capacities, educational levels, vocational skills, and ability of employment of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.” (Florida Statutes 68.01 (2) (e) )
Considering these items can get complex. For instance, what if the two parties met in law school? Their educational levels are the same, but what if the wife did not pursue a career and instead stayed home to raise the children? Are their earning capacities the same? Not really. And how employable is a lawyer 15 years out of law school who has never practiced? In this case, alimony awards for rehabilitation may be given, at least until her skills have been updated and she finds gainful employment. Or what if the couple married young, one puts the other through college but never finishes college for themselves? Even if the marriage was moderate in duration, duration or rehabilitative alimony awards might be made to allow the spouse to become more self-supporting. Or what if the couple is divorcing late in life and the wife never worked outside the home? Her ability for employment is likely not very high, so permanent alimony awards might be given. The court looks very carefully at these situations attempts to come to the most fair decision possible.
This section of the alimony awards rules allow for time to acquire sufficient education or training to allow the supported spouse to become self-supporting. This is usually done through rehabilitative alimony awards, which is fairly short term. There must be a specific plan of vocational rehabilitation filed with the court, and progress must be made in the plan. If the court thinks that the supported spouse is not following through in good faith, alimony awards can be terminated.
We could “what if” to infinity and beyond, because every marital situation is unique to the couple and all the factors need to be considered. Your situation is different from any other situation, and you need to be aware of what factors are considered in a request for alimony awards. This is where you need an experienced, dedicated attorney working on your behalf to answer your questions and help you through the process.
Underachievers For Alimony Awards
Sometimes in hotly contested divorces we hear things like “I’ll quit my six-figure job and work in a coffee shop so I don’t have to pay alimony!” Sorry, but that strategy won’t work. We also hear things like “I just won’t find a job and that will up my alimony payments!” That won’t work either.
Neither party can purposely diminish their employment position to benefit themselves financially. The court really disapproves of this, and may make an award based on what you could earn with your education and experience. This potential income is known as imputed income – and your plan to pay little to no alimony could backfire on you big time. You might end up owing alimony based on amounts you were earning before you quit that well-paying job to become a barista. That being said, the court may allow modifications of alimony awards if you have legitimately lost your job, or retired, or circumstances have otherwise substantially changed. The key issue here is whether the under-employment is voluntary or involuntary. If you became underemployed on purpose, you may be creating trouble for yourself. If the underemployment was not of your doing, you may be okay.
Another twist to this factor is that a temporary voluntary underemployment that will have long term benefits to the family situation, especially the children, is acceptable. For instance, leaving a good paying job to return to school to train for an even better paying job would not be held against the returning student/spouse.
More to Come For Alimony Awards
The factors that must be considered in determining alimony awards are complex, to say the least. We will be continuing our discussion of these factors in Part Three in an upcoming post. Keep in mind that your situation is unique, and that you need the advice of a compassionate, experienced family law attorney in order to adequately protect your rights and get you the best possible outcome. Divorce is never easy, and you need an advocate for your best interests. (Learn How To Choose The Right Attorney)