Divorce is hard. In fact, it’s devastating. While some people distract themselves by throwing themselves into their work, others let their work suffer while they go through the divorce process. So, your spouse may indeed be reflecting this life change in his or her financial situation.…And that’s the only thing positive I will say about a situation like this.
I’ve seen it hundreds of times. Parties file for divorce and everyone learns that the lower your income is, the higher the alimony you receive or the lower the alimony you will pay. Someone (often both) will suddenly have a financial crisis…especially when they control their own salary. Even when they don’t control their own salary, a new job becomes available that happens to pay less but “has more potential.”
Well, I don’t buy it and neither does anyone else. The problem is…how do you prove that the lack of funds is a choice? You can’t very well wait outside your spouse’s store and ask passerbyes “why aren’t you going in?”
Luckily, there’s a solution to this problem in the Florida courts: Nominal permanent alimony.
Alimony requires that the parties have both a need for alimony and a capacity to fund that need. When the requirement of “capacity” is not available at the immediate moment that the divorce is being finalized, the courts may award nominal permanent alimony.
Nominal alimony will often look like this: “Wife is awarded nominal permanent alimony of $ 1 a year from Husband perpetually and permanently.”
Why make an award of one dollar? Because, that way, you can come back on a motion to modify alimony once the ruse of low income is done (and it always ends).
The reason you need some kind of alimony to modify alimony is that there is a rule in Florida that you cannot ask for alimony after a divorce if alimony was not initially granted in the final divorce documents. Nourse v. Nourse, 948 So. 2d 903, 904 (Fla. 2d DCA 2007)
You don’t even need to say to the court that your spouse is trying to manipulate his or her income for alimony purposes. You can just claim that your spouse is “disabled and you hope they recover promptly.” In my experience, whenever you put an accusation in writing, you are best off saying it as nicely as possible.
Whenever you’re ready, or usually after you’ve received your ex-spouse’s taxes and W2s a year or two later per court order, you can file a motion to modify maintenance. If the income is higher (usually 20% is what the courts are looking for) that will qualify as a substantial change of circumstances per the statute and you can get the alimony you deserve. Fla. Stat. Sec. 61.08(8)
How do you avoid an order of nominal permanent alimony and the threat of alimony payments for the rest of your life? Simple, offer something in exchange. Offer a bigger proportion of the marital estate. Offer lump-sum alimony. Everything is negotiable in a divorce!
It’s like I say to every client regarding financial issues, “You can always make more money.”
Of course, this is all easier said than done. Find out how it’s done by contacting my Naples, Florida law firm and scheduling a free consultation.