Alimony is one of the most highly contested terms of any divorce action and has been the recent subject of extensive debate by the Florida legislature. Section 61.08 to the Florida Statutes covers alimony and sets forth the different types of alimony recognized by Florida law. They are:
- Bridge-the-gap alimony (maximum of 2 years)
- Rehabilitative alimony (duration of a rehabilitative plan)
- Durational alimony (not for a period longer than the marriage or until remarriage or death)
- Permanent alimony (until remarriage or death)
Alimony is only awarded where the court makes a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds there is a need and an ability to pay, the court then has to determine the proper type and amount of alimony.
The first step in determining the type of alimony is available is determining the duration of the marriage; under Florida law, a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and a long-term marriage is a marriage having a duration of more than 17 years. The duration of the marriage is extremely important for permanent alimony as the standard of proof required to award permanent alimony varies depending on the duration of marriage.
While I could write pages about alimony in general, military members and military spouses have unique circumstances that impact the factors a court will consider when awarding alimony. First, most military spouses have given up a career opportunity to follow his or her spouse as they execute PCS moves and complete deployments. Military spouses often find himself or herself in an area with little family support or connections to establish a career. In short, military spouses, if appropriately articulated to the court, can demonstrate a need for alimony much easier than his or her civilian equivalent.
On the other hand, there are very few jobs these days that offer the type of pension military members still receive upon completion of 20 years of service. The active duty component immediately starts receiving retired pay (or retainer pay in the case of enlisted) upon retirement after 20 years of service. For someone who entered the service at 17 years, he or she could collect retirement pay as early as the age of 37. Under the Uniformed Services Former Spouses’ Protection Act, Florida courts can (and do) treat a military retirement as marital property so long as the marriage overlapped the credible service. Determining the amount of military retirement that is marital property subject to distribution is a complex area of the law and beyond the scope of this post, but the point is that a former spouse entitled to military retirement will begin receiving that pay at the same time as the member, which could be at a fairly young age.
There is a strong argument that military retirement pay that will be received by the former spouse should be a factor when determining alimony. It is a future financial resource that the former spouse will receive for the rest of his or her life. But how certain is it? What if the member gets court-martialed and loses the retirement? What if the member dies before completing 20 years of credible service? There are a variety of factors that have to be weighed and considered when evaluating alimony in light of a potential military retirement.
Military members who believe they will retire from the military and are facing a divorce are well-advised to seek legal counsel from an attorney who has experience in military divorce matters. I recommend you bring your LES to the attorney at the initial meeting and ask them to review it. If they cannot intelligently discuss the LES with you, the lawyer is not the right lawyer for your military divorce.
Patrick Korody is a former Navy Judge Advocate. He stills serves as a JAG reservist. His offices are located in Jacksonville, FL. His family law practice is limited to military divorce and military family law matters.