When it comes to awarding alimony, there are several things the court must take into consideration.
And, when it comes to awarding permanent alimony, one of the key issues centers on how long a couple has been married.
In Banks v. Banks (Case No.2D 14-962), the Second District Court of Appeal in Tampa recently found that the trial court erred when it awarded Irene Banks durational alimony instead of permanent alimony.
Married in 1978 and separated in late 2011, the couple had been together 33 years, when Irene Banks filed a petition for dissolution of their marriage. At the time she was 63 and he was 55. The husband, Randy Banks, had an annual income of $90,000 and was receiving a $2,296-a-month military pension. Irene Banks was unemployed, but the trial court found she was capable of earning $25,000 a year and awarded her durational alimony of $1,500 a month for two years.
The wife brought up several issues for review with the appellate court, including a request for an award of permanent alimony. In reaching its decision, the trial court ruled that underFlorida statutes subsection 61.08(8) , the wife failed to show she was entitled to permanent alimony by clear and convincing evidence.
The appellate court found that the trial court misinterpreted the statute because it requires the party requesting permanent alimony only meet the clear and convincing standard of proof when the parties’ marriage is of moderate duration (i.e. 7 to 17 years).
However, the appellate court pointed out that this 33-year marriage was, by definition, a long-term marriage and that the portion of subsection 61.08(8) applicable to long-duration marriages does not, as the trial court ruled, require a party seeking permanent alimony to meet the clear and convincing standard of proof. In other words, in a longer-term marriage the standard of proof is reduced. The wife is merely required to show that an award of permanent alimony is appropriate taking into consideration the factors in the statute.
Taking into consideration the couple’s long-term marriage, her age (63), her unemployment status and her ex-husband’s “substantially greater earning power,” the appellate court remanded the case back to the trial court to consider making an award of at least a nominal amount of permanent periodic alimony.
Secondarily to the matter of alimony, Irene Banks also appealed the trial court’s decision awarding her a fixed amount of her ex-husband’s military retirement pay instead of a percentage. She pointed out that while at the time of the agreed upon division the award of 44.19 percent equaled $1,014.37 a month, the retirement pay is subject to a cost of living adjustment. She asked, and the appellate court agreed, that the amended final judgment needed to be corrected to eliminate the specific dollar amount and include only the percentage because over time the amount was subject to change.
The appellate court noted that “This ill-chosen wording is apt to lead to confusion about how the annual increases of the Wife’s share of the military retirement pay should be calculated and upon what figure they should be based.”
Contrary to popular claims and beliefs, permanent alimony is still awarded in Florida divorces. Rather than award permanent alimony only when no other form of alimony is appropriate, the Second District appears to still operate under the assumption that permanent alimony should be awarded in long-term marriages. That being said, every case is different, and that is why hiring a qualified attorney is so important.
Lori Barkus is a Florida Supreme Court Certified Circuit Civil and Family Law mediator and guardian ad litem. She handles matters relating to divorce, custody, child support, paternity, collaborative divorce, adoption, parental rights, and family law and civil mediation.
Ms. Barkus is a cum laude graduate of the University of Miami School of Law. She is admitted to practice in Florida, Georgia and the District of Columbia, as well as in the Southern and Middle Districts of Florida and the Eleventh Judicial Circuit Court of Appeals. She is also a member of Leading Women for Shared Parenting.
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