Permanent alimony can break the bank

Those who favor alimony reform have long suggested that no one should be forced to pay alimony for the rest of their lives, regardless of how long they were married or their financial situation.

It’s not unusual for those who must pay permanent alimony to one-day find themselves in dire financial straits when circumstances in their lives change, sometimes to the point of having to file for bankruptcy.

The existing system only serves to reinforce the belief that alimony is forever. What it fails to take into consideration are cases like the one that recently came before the Fourth District Court of Appeal in which both the ex-husband and ex-wife found themselves without enough money to meet even their barest needs. These cases are sadly quite common.

In Albu v. Albu (4D13-3558) the former husband appealed a lower court order that reduced his alimony instead of terminating it because he no longer had the ability to pay.

During the couple’s long-term marriage (which ended in 2007) the wife never worked outside the home. As part of the divorce, the husband agreed to pay his ex-wife $2,000 a month until she either remarried or died. He also agreed to pay another $80 a month in prescription drug costs. At the time, the husband was making around $120,000 a year, so making the payments wasn’t considered a financial hardship: Until circumstances changed.

For several years, the ex-husband failed to keep up his payments and by 2011 was in arrears in excess of $20,000. In 2012, the ex-husband petitioned the court to terminate or reduce alimony because of a substantial change in circumstances – he had suffered a heart attack and no longer could work. He lost his business and went from making a six-figure salary a year to living off disability benefits of $1,949 a month — $900 of which was deducted for alimony.

The ex-wife, who never worked outside of the house, was 60 years old at the time of modification and who couldn’t yet qualify for Social Security, noted that while his needs had changed, hers had remained the same.

The ex-husband argued that the $1,949 wasn’t even enough to cover his own expenses, let alone those of his ex-wife and therefore alimony should be terminated.

The lower court acknowledged that the ex-husband’s situation constituted a “substantial material and permanent change of circumstances,” which required a modification, but also pointed out that it had to be balanced against the former wife’s dependence on alimony.

As a result, the lower court reduced the alimony obligation to $900 a month and eliminated the $80 a month obligation for his ex-wife’s prescriptions. The court reasoned that, given the ex-wife’s dependence, the parties should be placed on equal ground. The court also said he could petition the court again for modification once his ex-wife started to collect Social Security.

The husband appealed arguing the lower court abused its discretion. The Fourth DCA disagreed. It pointed out that because neither party could meet their expenses the trial court made an effort to provide some support to the ex-wife by dividing up the ex-husband’s income, which was not an abuse of discretion. The court further quoted the Fifth District Court of Appeal case of Beebe v. Roman where the trial court, in deciding to divide the ex-husband’s income equally between the parties, reasoned that an equalization of their net incomes would place both parties “in an equally miserable situation.”

While every situation is different, couples should keep in mind that permanent alimony should not be considered a solution to bearing any responsibility for the financial future. Circumstances change, both health and job-wise. Couples, especially those whose marriage end in divorce, should be able to plan ahead for unforeseen situations; otherwise they might end up like this couple in an equally miserable and financially destitute situation.

The unfortunate reality of the current alimony laws is that they do not allow either party to meaningfully save and discourage the financially dependent ex-spouse from becoming independent for fear of losing the security of alimony. If the current laws are allowed to stand without reform, neither side can plan for the future or, in cases where income ends due to circumstances beyond a parties control; neither can avoid a financially devastating situation.

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.