Presented by: Heather L. Apicella

Transcription

1 Presented by: Heather L. Apicella

2 In A Dissolution Of Marriage Proceeding The Court May Grant The Following Forms Of Alimony: Bridge-The-Gap Rehabilitative Durational Permanent, or Any Combination Of These Forms Of Alimony

3 When A Court Awards Alimony It May Order: Periodic Payments Payments In Lump Sum, or Both

4 The Court Must First Determine If A Party Has: An Actual Need For Alimony Or Maintenance; And Whether Either Party Has The Ability To Pay Alimony Or Maintenance.

5 a). b). c). d). The Standard Of Living Established During The Marriage Duration Of Marriage Age/Physical/Emotional Condition Of Each Party Financial Resources Of Each Party e). Earning Capacity/Educational Level / Vocational Skill/Employability And If Applicable The Time Necessary For Each Party To Acquire Education./Training For Employment.

6 f). Contribution To Marriage - Homemaking, Child Care, Education And Career Building g). h). i). j). Responsibility Of Each Party To The Minor Children In Common Tax Treatment And Consequences Of Alimony Award Including Designation Of All or Part Of Alimony As Non-Taxable/Non-Deductible All Sources Of Income Available To Either Party Investment Of Assets Held By Either Party Any Other Factor

7 For Purposes of Determining Alimony There Is A Rebuttable Presumption: Short-Term Marriage Is A Marriage Having A Duration Of Less than 7 Years Moderate-Term Marriage Is A Marriage Having A Duration Of Greater Than 7 Years But Less Than 17 Years Long-term Marriage Is A Marriage Having A Duration Of 17 Years Or Greater.

8 The Length Of The Marriage Is: A Period Of Time From The Date Of Marriage Until The Date Of Filing Of An Action For Dissolution Of Marriage.

9 Bridge-The-Gap Alimony - Help With Transition From Married to Single. Designed To Assist A Party With Legitimate Identifiable Short-Term Needs. Length Of Award May Not Exceed 2 Years Terminates Upon Death Of Either Party. Terminates Upon The Remarriage Of Party Receiving Alimony. Alimony Shall Not Be Modified In Amount Or Duration.

10 Rehabilitative Alimony May Be Awarded To Assist A Party In Establishing The Capacity For Self-Support Through: Redevelopment Of Previous Skills Or Credentials; The Acquisition Of Education, Training, Or Work Experience Necessary To Develop Appropriate Employment Skills Or Credentials.

11 Specific Defined Rehabilitative Plan - Which Shall Be Included Within The Order Modification/Termination: In Accordance With Based Upon A Substantial Change in Circumstance. Upon Noncompliance With The Rehabilitative Plan. Upon Completion Of The Rehabilitative Plan.

12 Durational Alimony Provide Economic Assistance For A Set Period Of Time Following A Marriage Of Short Or Moderate Duration Or Following A Marriage Of Long Duration If There Is No Ongoing Need For Support On A Permanent Basis.

13 Durational Alimony Terminates Upon Death Of Either Party Or Upon The Remarriage Of Party Receiving Alimony. The Amount Of The Durational Alimony May Be Modified Or Terminated Based Upon A Substantial Change In Circumstance In Accordance With The Length Of The Durational Alimony May Not Be Modified Except Under Exceptional Circumstances And May Not Exceed The Length Of The Marriage.

14 Permanent Alimony May Be Awarded To Provide For The Needs And Necessities Of Life As They Were Established During The Marriage Of The Parties For A Party Who Lacks The Financial Ability To Meet His Or Her Needs And Necessities Of Life Following A Dissolution Of Marriage.

15 Permanent alimony may be awarded: For long-term marriages if such an award is appropriate For moderate-term marriages based upon clear and convincing evidence For short-term marriages upon written findings of exceptional circumstances

16 In Awarding Permanent Alimony, The Trial Court Shall Include A Finding That No Other Form Of Alimony Is Fair And Reasonable Under The Circumstances Of The Parties.

17 The Award Of Alimony May Not Leave The Payor With Significantly Less Net Income Than The Net Income Of The Recipient Unless There Are Written Findings Of Exceptional Circumstances.

18 The Starting Point For Every Alimony Analysis Has Always Been The Determination Of The Need Of The Requesting Spouse, And The Ability To Pay Of The Non-Requesting Spouse. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

19 It Is Error To Award Alimony When An Obligor Has No Ability To Pay. The Trial Court Is Not Required to Equalize Financial Positions. Furthermore, The Court Should Consider The Expenses Of The Parties And Whether The Income Can Cover The Expenses. Mills v. Johnson, 39 Fla. L. Weekly D1569 (Fla. 2d DCA 2014).

20 It Is Reversible Error For The Trial Court to Fail To Address The Various Factors Set Forth In (2) in Writing. See Austin v. Austin, 12 So. 3d 314 (Fla. 2d DCA 2009); Hill v. Hooten, 776 So. 2d 1004 (Fla. 5 th DCA 2001).

21 Bridge-The-Gap Alimony Can Be Used To Meet A Short-Term Gap Of Financial Need When A Rehabilitative Alimony Award Is Not Appropriate. See Bacon v. Bacon, 819 So. 2d 950 (Fla. 4 th DCA 2002).

22 The Principal Purpose Of Awarding Rehabilitative Alimony Is To Provide Funds To The Requesting Spouse So He Or She Can Establish The Capacity For Self-Support, Either Through The Redevelopment Of Previous Skills Or The Provision Of Training Necessary To Develop Potential Supportive Skills. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980).

23 A Rehabilitative Plan Is A Prerequisite In Order For The Court To Award Rehabilitative Alimony. See Lovell v. Lovell, 14 So. 3d 1111 (Fla. 5 th DCA 2009). Per Section 61.08(6)(b), The Plan Must Be A Part Of Any Order. Therefore, It Is Recommended That The Party Seeking Rehabilitative Alimony Provide The Court With The Written Plan.

24 In Noursari v. Nousari, 94 So. 3d 704 (Fla. 4 th DCA 2012), The Parties Were In A Moderate Term Marriage (Wife 39Years Old/Husband 44 Years Old). The Wife Was Awarded Durational Alimony Of $10,708 Per Month For 9 Years. The Wife Appealed, Citing Error By The Trial Court In Failing To Award Her Permanent Alimony. The Appellate Court Affirmed The Trial Court s Ruling.

25 In Motie v. Motie, The Fifth DCA Found The Trial Court Abused Its Discretion In Awarding Durational Alimony As Opposed to Permanent Alimony In Long Term Marriage (Over 17 Years). The Trial Court Cited The Actions Of The Parties, Credibility, Age, Expected Ability To Produce A Income And Remaining Considerations In The Factors Did Not Meet The Criteria For Permanent Alimony." The Fifth DCA Stated that This Was Insufficient To Conclude That There Was No Need For Permanent Support And to Rebut The Presumption For Permanent Alimony.

26 Permanent Periodic Alimony Is Used To Provide The Needs And The Necessities Of Life To A Former Spouse As They Have Been Established By The Marriage Of The Parties. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla. 1980). Current Necessary Support, Rather Than The Accumulation Of Capital, Is The Purpose Of Permanent Periodic Alimony. Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla. 2000).

27 The Trial Court Erred In Denying Permanent Alimony In A 17 Year Marriage Without Setting Forth Findings Of Fact As Required In 61.08(2). See Wright v. Wright, 135 3d (Fla. 5 th DCA 2014). In Evans v. Evans, The Court Held That The Trial Court Abused Its Discretion In Awarding The Wife Permanent Alimony, Because The Wife Had 2 Years Of College, Was Young, And Previously Had The Ability To Run a Business. Therefore, There Was Not A Permanent Inability For The Wife To Become Self Supporting. 128 So. 3d 972 (Fla. 1 st DCA 2013).

28 Two Requirements For A Lump Sum Award: Must Be Identified As: 1). Necessary Support; OR 2). For An Equalizing Payment. For If Awarded For Support, There Must Also Exist Special Circumstances Or A Special Necessity To Justify It. See Mondello v. Torres, 47 So. 3d 389 (Fla. 4 th DCA 2010). Not Subject To Modification. Not Terminable Upon Spouse s Remarriage Or Death. Becomes A Vested Property Recipient, Subject To Interest. Right To The

29 Temporary Alimony: Amount Paid After Filing And Before Entry Of Final Judgment. Very Broad Discretion In Setting A Temporary Alimony Amount - Will Generally Not Be Disturbed Absent Compelling Circumstances: Where The Award Is Clearly Insufficient To Meet The Needs Of The Recipient, see Robbie v. Robbie, 591 So.2d 1006 (Fla. 4 th DCA 1991); If A Payor Has The Clear Ability To Pay An Award, see Pedraja v. Garcia, 667 So.2d 461 (Fla. 4 th DCA 1996).)

30 Nominal Alimony: A Form Of Permanent Alimony Paid In A Small Amount, Because A Higher Award Is Not Proper, But Which Preserves The Court s Jurisdiction to Make A Higher Award In The Future. See Purrinos v. Purrinos, 34 So. 3d 244 (Fla. 3d DCA 2010).

31 Retroactive Alimony: A Trial Court, In Its Discretion, May Award Retroactive Alimony When Appropriate. Credits Or Set-Offs May Be Applied Against A Retroactive Alimony Obligation. Such Award Requires A Finding Of Need For Retroactive Alimony And An Ability To Pay. See, e.g., Valentine v. Van Sickle, 42 So. 3d 267 (Fla. 2d DCA 2010), Where A Trial Court s Award Of $72,000 In Retroactive Alimony To The Wife ($4k /Month For 18 Months) Was Reversed Where No Findings Were Made Showing That The Husband Had The Ability To Pay $4k/Mo. In Alimony During The Retroactive Period Of Time.

32 Alimony Is Usually Taxable To The Recipient And Deductible By The Payor. However, A Trial Court May Provide That Alimony Payments Are Non-Taxable And Non-Deductible. Rykiel v. Rykiel, 838 So. 2d 508 (Fla. 2003).

33 For Alimony To Be Taxable And Deductible The Payments Must: Be Received Pursuant To A Divorce Instrument; Not Specifically Excluded From Gross Income; Not Made By A Spouse In The Same Household; Terminate On The Death Of The Recipient; Not Fixed To A Child s Support; Be Cash Or Cash-Equivalent.

34 Anti-dumping Provision Of The Internal Revenue Code. Its Purpose Is To Prevent Favorable Tax Treatment For Property Distributions Made Within 3 Years Of Divorce Decree. An Alimony Payor May Have A Recapture Problem In Cases Involving Significant Front- Loading In First Or Second Post-Divorce Years, Or Significant Drops In Alimony In The Second Or Third Post-Divorce Year.

35 1. Alimony paid in Year 2 $39, Alimony paid in Year 3 28, Floor 15, Add lines 2 and 3 $43, Subtract line 4 from line 1 $ 0 6. Alimony paid in Year 1 $50, Adjusted alimony paid in Year 2 39,000 (line 1 minus line 5) 8. Alimony paid in Year 3 28, Add lines 7 and 8 67, Divide line 9 by 2 33, Floor 15, Add lines 10 and 11 48, Subtract line 12 from line 6 $1, Recaptured alimony. Add lines 5 and 13 $1,500

36 Section 61.08(3) Provides Courts With The Authority To Order An Alimony Payor To Secure The Payment Of The Court s Alimony Award: By Purchasing Or Maintaining A Life Insurance Policy Or Bond, Or By Securing The Alimony With Any Other Asset Which May Be Suitable For That Purpose. Appropriate Circumstances Must Exist For A Court To Order A Party To Provide Such Security. Sobelman v. Sobelman, 541 So.2d 1153 (Fla. 1989)

37 2012 Legislative Year 2013 Legislative Year Future of Alimony In Florida????

38 The End gwpa.com