The Florida statute grants divorce courts broad discretion in awarding alimony. Case law, however, curtails that broad discretion so that a more reasonable and consistent level of alimony can be estimated by family lawyers and applied by family law judges.
The first step in determining whether any alimony will be awarded is a quick comparison of the party’s incomes and assets. If they are approximately equal, there will be no alimony award for either party. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
If there is a disparity in the couple’s income and financial assets then alimony may be awarded. Alimony claims are made by comparing the two parties’ needs versus their respective financial resources, focusing primarily on recurring income and then on assets.
“Needs” is defined for the purposes of alimony as the standard of living that was enjoyed during the marriage. Firestone v. Firestone, 263 So. 2d 223. “Needs” in the alimony sense is obviously completely relative to the couple. One man’s luxuries may be another man’s necessities. The courts will apply a reasonable standard but it will always be tinged by the relative wealth or poverty of the lifestyle of the couple during the marriage. In Naples, Florida, we have many residents of extreme wealth and income so it will be difficult to shock the court with a party’s needs, no matter how extreme.
Once the needs of a party are established, we then look to the capacity of the party with those needs to satisfy those needs with their own income and assets.
If the party seeking alimony can meet their needs with their own income, no alimony will be awarded.
If the party seeking alimony could foreseeably earn sufficient income to satisfy their needs, the court can impute that capacity to earn income to the spouse requesting alimony. In my experience, proving a possibility is very difficult. The best a high-earning spouse can do is request that the other spouse prepare a good-faith job diary to determine what income, if any, he or she could earn in an alternate circumstance.
The preferable strategy in lieu of imputation is to create some kind of incentive for the other spouse to get a higher paying job (or more typically, any job at all). If this requires a lump-sum offer, you will still likely save money in the long-term.
After the needs of one spouse are established, the courts then look to the capacity of the other spouse to contribute to meet whatever deficit exists in that party’s ability to meet those needs themselves. “A spouse’s ability to pay may be determined not only from net income but from net worth, past earnings and the value of the parties’ capital assets.” Canakaris v Canakarais, 382 So. 2d 1197 (Fla. 1980)
Therefore, a party may have expensive needs and little to no income but the assets awarded to the party in a divorce may be sufficient to satisfy those needs and thus eliminate the need for an alimony award.
It is common for the higher-earning party to have a diminution or interruption of their income during a divorce proceeding to reduce their capacity to contribute to the other party’s alimony. If this happens to you, you should preserve any and all evidence of the reasons for your income’s reduction. Otherwise, the court will presume you are purposefully reducing your income and merely impute your previous income when the court calculates alimony.
Contact my Naples, Florida family law office today to schedule a free consultation with a divorce lawyer regarding the alimony you may have to receive or pay in your pending divorce.
