Boca Raton Divorce Lawyer Blog

The entitlement to an award of retroactive alimony is a right, and not a privilege, if the circumstances support the award. See alimony update for additional information on this subject.

The case of Gremel v. Gremel, 35 Fla. L. weekly D2291a (Fla. 2nd DCA 2010) illustrates the point. Mrs. Gremel separated from her husband in December 2003. She did not file her divorce petition until March 15, 2007, more than three years after her initial separation. On April 1, 2008, the trial court entered a temporary order requiring Mr. Gremel to pay his wife $2950 per month, as of April 1, 2008.

The appellate court stated that Mrs. Gremel may very well be entitled to retroactive alimony from March 15, 2007, the date of the filing of her petition for dissolution of marriage. See Valentine v. Van Sickle, 35 Fla. L. Weekly D1663 (Fla. 2d DCA Jul. 28, 2010).

The trial court was instructed to consider the wife's needs and the husband's ability to pay during the retroactive time period sought by the wife in determining whether the wife's retroactive alimony request is appropriate.

In a case recently decided, a wife was awarded an astounding sum of $75,000.00 per month for temporary support for herself and her child. Stanton v. Stanton, 2D10-919 (2010).

The appellate court said this amount simply could not stand, as the amount was not supported by competent substantial evidence.

The trial court should consider the standard of living in addition to the need of one spouse and the other spouse's ability to pay. de Gutierrez v. Gutierrez, 19 So.3d 1110, 1113 (Fla. 2d DCA 2009).

Here, in this case, the wife had testified that her monthly expenses totaled $44,029, including those of her child. Her financial affidavit also indicated her monthly expenses to total $44,029. It was clear to the appellate court that the trial judge had erred in making an award of $75,000 per month for the wife when the evidence reflected that the wife's needs were $44,029. Also CLICK HERE to visit my site for the most updated information on the new alimony laws in Florida.

The appellate court gave further instructions to the trial court that the award to the wife must be based upon her needs, and should not attempt "to fund the enjoyment of every
little luxury enjoyed before divorce." Levine v. Levine, 964 So.2d 741, 742-43 (Fla. 4th DCA 2007).

The purpose of alimony is to provide for the less wealthy spouse above bare subsistence levels, not to fund the enjoyment of every little luxury enjoyed before divorce. "Fixing alimony at a profligate standard of living is to turn alimony into a lottery. That is one reason why the standard of living during marriage is not a super factor trumping all other factors in awarding alimony. Jaffy v. Jaffy, 965 So.2d 825, 828 (Fla. 4th DCA 2007).

Although the sum of $44,029, awarded to the wife on a monthly basis was certainly not a nominal amount, this case still clearly points out that the standard for temporary relief is clearly the needs of the requesting spouse versus the ability of the other spouse to meet those needs.

This question frequently arises in the context of a subsequently filed bankruptcy proceeding. Generally, the obligor, or person who is obliged to make the lump sum alimony payment, seeks to have the payment or payments discharged through a bankruptcy proceeding.

The resolution of these types of situations is of course dependent upon the intent of the parties. The intent is ascertained by examining the language used in the parties agreement. Although the language used in an agreement is not conclusive, the words are given weight in determining the intent of the parties. Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968); Woodworth v. Woodworth, 385 So2d 1024 (Fla. 4th DCA 1980).

If the court ultimately determines that an obligation, which is labeled as alimony in an agreement, is in fact alimony, the alimony, which is lump sum, payable in installments, is is a vested right and not subject to modification. Such a determination would preclude the obligation from being discharged in bankruptcy, and would further subject the obligor to the contempt powers of the court if the obligation is not paid. Zuccarello v. Zuccarello, 429 So.2d 68 (Fla. 3d DCA 1983); McCombes v. McCombes, 440 So.2d 683 (Fla. 1st DCA 1983).

However, if the parties to an agreement had agreed that payments required under an agreement were for settlement of property rights, and not intended as alimony, those payments could not be enforceable by contempt, and would therefore be dischargeable in bankruptcy. Pabian v. Pabian, 480 So.2d 237 (Fla. 4th DCA 1985).

The contempt powers of the court simply cannot be used to punish someone for contempt, when the payments required from that individual are not support related. In Veiga v. State of Florida, 561 So.2d 1335, (15 Fla. L. Weekly D1487), the husband was found in criminal contempt for failing to pay his wife $25,000.00 as "lump sum alimony for purposes of equitable division of the interest in his business." Having determined that the obligation was for property settlement issues, rather than support, the contempt order was reversed. The payment then becomes a dischargeable obligation in bankruptcy.

It is very clear from the cases that emanate from Boca Raton, Palm Beach County, South Florida as well as throughout the state of Florida, that the only remedies for non payment of property obligations are those that are available to creditors against debtors. Underwood v. Underwood, 64 So.2d 281 (Fla. 1953); Hine v. Hine, 558 So.2d 496 (Fla. 3d DCA 1990); Carlin v. Carlin, 310 So.2d 403 (Fla. 4th DCA 1975); and Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968).

In conclusion, the lump sum alimony payments will only be dischargeable if the intent was to treat those payments as property rights versus a true alimony obligation. Extreme caution must be exercised in drafting any agreements so as to establish clearly the true intent of the partes.

We now know that a 17 year marriage is considered a long term marriage under Florida law. A long term marriage raises the presumption of permanent alimony. The new alimony statute lists various criteria that the trial judge should consider in making the determination to award permanent alimony, but it doesn't tell us how much is to be paid.

The standard in alimony awards continues to be the needs of the recipient, balanced against the ability of the obligor to pay and meet those needs. There are thousands of cases on the books which deal with alimony. The following cases are representative of alimony awards which the court has ruled to be excessive, and can certainly be utilized and applied when considering the circumstances in your own particular case.

In Thomas v. Thomas, 418 So.2d 316 (Fla. 4th DCA 1982), the wife was awarded 58% of the husband's net income. The court ruled that this amount was excessive and reversed the award.

Although there was no mention of any percentages being paid, the court in Posner v. Posner, 988 So.2d 128 (Fla. 4th DCA 2008) reversed an award when "the total support and expense awards consumed nearly all of the obligor's net monthly income."

An abuse of discretion was found in Gentile v. Gentile, 565 So.2d 820, 822 (Fla. 4th DCA 1990) when the husband was ordered to pay 79% of his income for support.

In Benenfeld v. Benenfeld, 705 So. 2d 1072 (Fla. 4th DCA 1998) an award of 80% of the husband's net income was found to be excessive.

Seventy Six (76%) percent of the husband's income was ruled to be excessive in Decker v. Decker, 660 So. 2d 1162 (Fla. 4th DCA 1995).

Dennison v. Dennison, 852 So.2d 422 (Fla. 4th DCA 2003), the court found an award of alimony, in the amount of $3,000.00, combined with an award of child support of $1,500.00, to be excessive. The husband was showing net monthly income of $5,500.00.

In the case of Sokol v. Sokol, 441 So.2d 682 (Fla. 2d DCA 1983), an award of 71% of the husband's net income was found to be an abuse of discretion.

70% of the husband's income was excessive in Kaylor v. Kaylor, 413 So.2d 870 (Fla. 2d DCA 1982).

In Casella v. Casella, 569 So.2d 848 (Fla. 4th DCA 1990), an award of 70% of the husband's net income was also found to be clearly excessive.

The ultimate question that arises from this discussion is what percentage of support, when paid, becomes excessive? There is unfortunately, no simple answer. Each individual case must be examined on its own set of facts. What may appear to be an excessive award of alimony in one case, may not necessarily be excessive in a different case. It all depends on the unique facts of each case as they come before the court.

Some areas of the law are "black and white" in that based upon a prescribed set of facts, you knew exactly where you stood. Some areas are "gray", which is especially true in the context of a divorce case, where the family court judge presiding over the case has a wide range of discretion . This was never more true than when dealing with the issue of alimony.

Alimony was always the "wild card" in a divorce case. If the entitlement to alimony was apparent, the recipient never really knew what to expect as to how long the financial assistance would continue, nor did the obligor really know what their exposure would be to pay the obligation. That has all changed now, with the enactment of Florida Statute 61.08, effective July 1, 2010.

The Florida legislature has now categorized marriages into three types, short term; moderate-term; and long term marriage, all of which are determined by the length of the marriage.

A short term marriage is one in which the duration is less than 7 years; a moderate-term marriage is from 7 years but less than 17 years in duration; and a long term marriage is one which exceeds 17 years duration. The time period is measured from the date of the marriage to the date of filing the dissolution of marriage action.

The length of the marriage is important, since it becomes the determining factor in the type of alimony to be paid and received. For example, once you fall into a long term marriage bracket, the presumption exists for the payment of permanent alimony, the amount of which would continue to be measured by the needs of the recipient, balanced against the financial ability of the obligor to meet those needs. Although there is only a presumption in favor of permanent alimony, rather than a directive, that presumption may be difficult to overcome.

What about the other two categories, short term and moderate-term marriages? What is the relationship between alimony and these types of marriages? The Florida legislature, in Chapter 61.08, has defined four types of alimony, which are bridge-the-gap; rehabilitative; durational; and permanent.

Bridge-the-gap alimony is generally reserved for those falling within a short term marriage, and is utilized to assist one in making the transition from being married to being single. The length of the award cannot exceed two years.

An award of rehabilitative alimony may be awarded to assist a party in establishing the capacity for self support. This is to either redevelop previous skills or for receiving the training to acquire new skills. There must be a specific plan in place to achieve these objectives.

Durational alimony may be awarded when permanent alimony is not appropriate, and it may not exceed the length of the marriage.

By having these objective standards in place, the subject matter of alimony is now approaching the "black and white" zone of the law.

As the old cliche goes, "nothing is forever", including either the award of or agreement to pay permanent alimony. Support obligations are always subject to modification.

However, in order to justify a modification of alimony, the petitioning or moving party must prove (1) a substantial change in circumstances; (2) that the change was not contemplated at the time of entry of the final judgment of dissolution of the marriage; and (3) that the change is sufficient, material, permanent and involuntary.

One should be mindful of the fact that there is a very big difference in modifying alimony downward due to a change in final circumstances, versus a complete termination of alimony. In order to terminate a permanent periodic alimony obligation, one must allege and be able to prove that he or she is no longer able to pay any amount of alimony or that the recipient of the alimony is able to support themselves through their own efforts and abilities.

A recent case from the Third District Court of Appeal, decided on August 18, 2010 offers a good explanation as to the heavy burden involved in terminating permanent periodic alimony. Suarez v. Sanchez, 3rd District Case No. 3D09-1593.

Mr. Sanchez was an eighty one year old gentleman, whose health had deteriorated since the dissolution of marriage was entered, and due to poor health, chose to take a voluntary retirement. Although he had met his burden in establishing a basis for a modification of his alimony payment, he did not meet the very heavy burden of having his payments terminate in their entirety. The evidence presented in the case demonstrated that Mr Sanchez had an annual surplus of approximately $10,000.00; and the former wife had an annual deficit of approximately $19,000.00.

Since the ability to continue to pay something existed, although at a reduced amount, the alimony obligation would continue, even at the age of 81.