What Determines Alimony Eligibility?
Posted By Posted by Givens Givens Sparks on Jan 4, 2016 9:01am PST || Jan 4, 2016
Florida law does not mandate alimony in divorce cases, but rather sets guidelines for considerations when alimony is requested during a dissolution of marriage. Knowing the parameters of this statute can help set appropriate expectations during a divorce.
Florida Statute 61.08(2) states, “If the court finds that a party has a need for alimony and that the other party has the ability to pay alimony, then in determining the proper type and amount of alimony the court shall consider all relevant factors.” Relevant factors to be considered include the duration of the marriage, and whether or not the duration should allow the court to consider term or permanent alimony.
The same statute defines a long term marriage as “a marriage having a duration of 17 years or greater” (61.08(4)) and also specifies that “permanent alimony may be awarded following a marriage of long duration.” (61.08(8)) Use of the word ‘may’ is instructive here, as it expressly provides that permanent alimony awards are permissive, and not mandatory, following a long- term marriage.
Earlier this year, in Niekamp v. Niekamp, the Second District Court of Appeals stated that in a long-term marriage “there is a presumption in favor of alimony when warranted by one party’s need and the other party’s ability to pay.” This statement, despite numerous cases following suit throughout Florida, is not directly supported by the alimony statute. There is not, as stated, a “presumption in favor of alimony,” but rather a guideline to consider “all relevant factors” when making a decision in favor of or against an award of alimony. Therefore, as alimony is not mandatory per the statute, there is no bar to a trial court refusing to award alimony after finding need and ability to pay and considering the statutory factors.
The holding in Niekamp seems to elevate duration of the marriage, one singular factor the court must consider out of ten statutory factors, to a “superfactor” that creates a presumption in obligating an award of alimony. The holding also seems to create a presumption, where one does not exist, that alimony of some form is required following a long-term marriage where need and ability to pay exist.
Divorce and family law issues can be complex. For information on how Givens Givens Sparks can assist you with your divorce and family law matters, contact one of our Florida divorce ATTORNEYS.