Too Much Discretion in Florida Alimony Determinations
Tampa Bay Judges Have Too Much Discretion in Alimony Cases
By Thor Hartwig, a Divorce Attorney in Tampa, Florida
For the foreseeable future, alimony is here to stay in Florida divorce cases. Whether or not we agree or disagree with alimony itself, this fact remains. Many on the side of alimony reform seem to gravitate towards the singular topic of abolishing permanent alimony, and rightly so. After all, permanent alimony is egregious, tantamount to punishment, and is the source of many of the horror stories associated with divorce. Apropos of modern times, Florida should, as have other states, such as Montana, devise a scheme for spousal maintenance with the express aim of providing the recipient of alimony the means by which to do what is necessary to re-enter the workforce.
This is particularly germane where one spouse has been a homemaker, while the other provided the means to financially support the household. The former should be entitled to some form of support until he or she can begin to make a living otherwise.
The present approach is archaic and, one might argue, somewhat sexist and out of alignment with the present view of gender equality. Both males and females are equally capable of moving beyond a dissolution into the realm of employment. Moreover, while the law favors the notion that children should continue life, post dissolution, in as near a standard of living as they have become accustomed to, in a no-fault context, no such right should inure to divorced spouses.
Absent a significant change to Florida's judicial and legislative philosophies about this issue, we should, in examining the outcome of alimony cases, focus upon the processes leading thereto. In this context, the statutorily mandated, ten (10) factor method for judicially determining both the type and value of alimony to be awarded is overly subjective. Indeed, as most attorneys can attest, any effort to objectively try to quantify these “relevant” factors is a bit like licking your finger and sticking it in the air to see which way the wind is blowing.
Exemplifying the above are, for instance, the question of how a judge is able to determine the facts relating to the “standard of living established during the marriage” and assign a dollar amount to it. This becomes subjective if one spouse was spending beyond the couple's collective means, while the other did not. This is particularly disconcerting where, as happens, financial hardship ensues and leads to the dissolution at hand. Furthermore, how may a court objectively quantify the open-ended definition of “contribution of each party to the marriage,” apart from their incomes?
Laypersons are prone, at the outset, to trusting the legal process, giving blind deference to the court's acumen. Conversely, practitioners are well aware that judges are all too human. Hence, when objectivity becomes impossible, discretionary, subjective findings become unavoidable, leaving one or the other of the parties disenchanted with law and its application.
While judicial discretion plays an important role in family law, it should not be statutorily mandated to the present extent. The risk, which has manifested, is that the application of equitable remedies becomes the imposition of unequal treatment under the law because the outcomes of family law cases, as to this issue, vary wildly, regardless of the similarity, or lack thereof, of the underlying fact patterns.
The first paragraph of Florida’s alimony statutes says a judge may take into consideration an adulterous act by either spouse for purposes of awarding alimony. Therefore, the Court has the discretion to either take adultery into account, in determining alimony, or not. Accordingly, in two cases, before two different judges, and all else being equal, one case may result in alimony predicated upon adulterous conduct, while the other does not.
Moreover, quantifying the value of adultery is equally subjective and prone to result in wildly differing outcomes between various courtrooms. If Florida insists upon on allowing adulterous conduct to continue as a “factor,” in determining alimony, then it should mandate the courts do so and devise a matrix, based upon the parties' financial disclosures, for determining the effect thereof.
The Florida alimony statutes do give some guidance on the upper limit of what a spouse may be ordered to pay: Absent exceptional circumstances, alimony cannot leave the payor with significantly less net income than the net income of the recipient.
This protection, however, becomes meaningless in the face of the subjective factors to determine the amount owed, particularly where, as with the issue of adultery, the courts have, in essence, the discretion to punish conduct and make a conjunctive determination that such presents an “exceptional circumstance.” Conceivably, and in practice, this could lead to an award amount that could span anywhere from 1% to over 50% of the payor's net income.
As a result of the foregoing, even the most seasoned of attorneys cannot advise their clients as to likely alimony awards, but rather, can refer to the proclivities of specific judges and, where possible, suggest forum shopping to assure a more favorable outcome.
Ironically, the template to resolve this issue is already utilized in child support cases. Florida's statuary scheme requires the courts to utilize a formula to follow. This is based upon relative gross incomes, taxes, FICA, allowable deductions, the number of overnights with each parent, adjustments for medical insurance and childcare costs paid by each parent, which, when entered into the matrix determines the child support that must be ordered by the Court. And, most importantly, absent exceptional circumstances, the judge only has the discretion to adjust the amount by 5%.
There is no reason this format cannot be utilized for calculating alimony. Upon establishing the benchmarks requiring the payment of alimony, the court would be bound to rely only upon quantifiable data to determine alimony, with leave for discretion as suggested under the child support statues.
This is not a novel approach and has been employed in other states, which employ quantifiable guidelines in establishing spousal maintenance or alimony. In New York, for example, the formula used is that temporary alimony shall be based upon deducting 20% of the recipient’s net income from 30% of the payor’s net income. The net sum equals the amount to be paid, but cannot exceed 40% of the couple’s combined net income.
While imperfect, and directed at temporary alimony, such a scheme presents a viable alternative to what we have in Florida. Alimony awards should be objectively devised and require additional consideration of the length of the marriage and child support owed.
In the meantime, any time a client asks me about child support, I pull-up my Tools for Law software, refer to the financial affidavits, enter a few possible outcomes for timesharing and give them an answer. When they ask me about alimony, I lick my finger and stick it up into the air.
They get the point.
Thor Hartwig is a men’s divorce attorney practicing family law in Tampa Bay. After going through a divorce in Hillsborough county while in the Army, he left active duty to remain close to his daughter and pursue a legal career dedicated to helping men in family law areas.
