Bauer Family Law - Alimony
From Wikipedia, the encyclopedia
Alimony, maintenance or spousal support is an obligation established by law in many countries that is
based on the premise that both spouses have an absolute obligation to support each other during the
marriage (or civil union) unless they are legally separated. In some instances the obligation to support
may continue after separation.
Historically, alimony arose as a result of the indissoluble nature of marriage. Because divorce was rare,
husband and wife remained married after their physical separation and the husband's obligation to
support his wife continued. With the growing view that men and women should be treated equally the
law recognized that both husbands and wives owed each other a similar duty of support. Accordingly,
courts now may order either the husband or wife to pay alimony, though in practice it is almost always
Alimony usually is synonymous, as a rule, with ex-husband payments to the ex-wife.
How alimony is granted in Florida
Once dissolution proceedings commence either party may seek temporary or pendente lite support
during the course of the litigation.
Where a divorce or dissolution of marriage (civil union) is granted, either party may ask for post-marital
alimony either in the form of rehabilitative, permanent, bridge-the-gap or durational alimony. In some
cases a party may receive an unequal distribution of martial assets as a form of lump sum alimony. It
is not an absolute right, but may be granted, the amount and terms vary with the circumstances. If one
party is already receiving support at the time of the divorce, the previous order is not automatically
continued (although this can be requested), as the arguments for support during and after the marriage
can be different.
Unless the parties agree on the terms of their divorce in a binding written instrument, the court will
make a fair determination based on the legal argument and the testimony submitted by both parties.
This can be modified at any future date based on a change of circumstances by either party on proper
notice to the other party and application to the court. The courts are generally reluctant to modify an
existing agreement unless the reasons are compelling. In some jurisdictions the court always has
jurisdiction to grant maintenance should one of the former spouses become a public charge.
Alimony and child support compared
Alimony is not child support, which is another ongoing financial obligation often established in divorce.
Child support is where one parent is required to contribute to the support of his or her children through
the agency of the child's other parent or guardian.
Alimony is treated very differently to child support in the United States with respect to taxation. Alimony is
treated as income to the receiving spouse, and deducted from the income of the paying spouse. Child
support is not a payment that affects US taxes as it is viewed as a payment that a parent is making for
the support of their own offspring.
If a party fails to pay alimony, there are not generally any special legal options available to the party that
is owed money. In many jurisdictions, people whose child support obligations go into arrears can have
licenses seized, in Florida they can even be imprisoned. Someone trying to recover back alimony can
only use the collection procedures that are available to all other creditors (for example, (s)he could
report the back alimony to a collection agency).
Factors affecting alimony
Some of the possible factors that bear on the amount and duration of the support are:
Length of the marriage
A marriage of 1-7 years is considered a short term marriage and there is a presumption against
A marriage of 7-17 years is considered a moderate term marriage and there is no presumption in favor
or against alimony.
A marriage of 17 years or more is considered a long term marriage and there is a presumption in favor
Age of the parties at the time of the divorce
Generally more youthful spouses are considered to be more able to 'get on' with their lives, and
therefore thought to require shorter periods of support.
Relative income of the parties
Generally speaking, the Courts will balance one party's needs over the other party's ability to pay. If a
party does not have the ability to pay minimal monthly expenses, and the other party has a good income,
so long as other factors are satisfied, its likely that alimony will be awarded.
Future financial prospects of the parties
A spouse who is going to realize significant income in the future is likely to have to pay higher alimony
than one who is not.
Health of the parties
Poor health goes towards need, and potentially an inability to support for oneself. The courts do not
want to leave one party indigent.
Standard of living during the marriage
Florida recognize a 'right' of the spouses to live 'according to the means they have become
accustomed', alimony attempts to adjust the incomes of the spouses so that they are able to
approximate, as best possible, their prior lifestyle. This tends to equalize strongly post-divorce income,
heavily penalizing the higher-earning spouse.
Other assets available to the spouses
If a party has other assets which can be liquidated to help pay for their expenses, it will be less likely
that they would receive an alimony award.
Types of Alimony in Florida
Rehabilitative-as the name implies-is intended to help support a spouse to allow him/her to renew old
skills or gain new skills leading to self-support. It is intended to be a short-term measure which
enables a spouse to get back on his or her feet. Alimony is awarded to enable the other spouse to go
back to school or to acquire needed skills that would enable the spouse to be competitive in the job
market. Usually a spouse who has chosen the role of becoming a homemaker and raising children has
not been able to develop the skills necessary for productive and gainful employment. This ends
automatically after a fixed period unless the court is asked to extend it.
Permanent alimony continues indefinitely until remarriage or death of the spouse. It is usually awarded
when one of the parties is unable to work due to age physical or mental illness. The two primary
elements considered are needs of the receiving spouse and ability of the paying spouse to provide the
Lump Sum Alimony
Lump sum payment, involves a set payment amount. This type of alimony survives the death of both
parties and cannot be changed. It may involve money, property or a combination. It may be payable all
at once or in payments over a period of time.
Durational alimony is alimony that is provided for a needy spouse for a specific duration of time. This is
generally awarded to a spouse in a moderate term marriage when other forms of alimony are not
appropriate. Durational alimony cannot exceed the length of the parties' marriage.
Bridge-the-Gap alimony is alimony that is provided to a needy spouse to bridge the gap between
married and single life. This is generally awarded in a short term marriage when there is a large
variance in the parties' incomes. Bridge-the-Gap alimony cannot exceed two (2) years.
Tax consequences of alimony in the United States
According to Section 71 of the US Internal Revenue Code, alimony must be included in the recipient’s
gross income and can be excluded from the payer’s gross income. To qualify as alimony the payments
must meet the following five conditions:
- The payment is a cash payment
- The payment is received by a “divorce or separation instrument”
- The instrument does not specify that the payments are not for alimony
- The payer and payee are not members of the same household when the payments are made
- There is no liability to make the payments for any period after the death or remarriage of the
These requirements apply whether the parties enter an agreement that is approved in an order of the
Court (contractual alimony) or the Court orders alimony after a contested trial (statutory alimony). See,
for example, Post-Divorce Alimony in Texas.
A divorce or separation instrument is defined as a decree of divorce or separate maintenance or a
written instrument incident to such a decree, a written separation agreement, or a decree requiring a
spouse to make payments for the support or maintenance of the other spouse.
Child support must be included in the payer’s gross income and can be excluded from the recipient’s
gross income. Child support payments are payments that are allocated to the support of the minor
children of the pair. If the amount of the alimony payments would be reduced in the event of the age,
death, or marriage of the child, this contingent amount would be considered child support.
Section 215 of the Internal Revenue Code allows the alimony payer to take a tax deduction for any
alimony or separate maintenance paid during the year. The payer’s deduction is tied to the recipient’s
inclusion of alimony.
Together Sections 71 and 215 act as an income-splitting device. Because of this, collaborative divorce
processes such as mediation may allow special tax-saving alimony planning opportunities. See, for
example, Mediation's Power in Alimony Cases.
Orlando Divorce Attorneys
Bauer Family Law
5401 South Kirkman Road
Orlando, FL 32819
Phone: (407) 926-0255
Facsimile: (407) 926-0254