Sunday, June 18, 2006

Hillier v. Iglesias: Defining Need and Ability To Pay

Lawyers are the only persons in whom ignorance of the law is not punished.
-- Jeremy Bentham

This case dramatically changes the landscape in Florida for adjudicating alimony awards and modifications. Namely, the starting point and most significant point must be a demonstrated NEED by the party requesting alimony. The next significant point is the ability of the other party to pay. Chief Justice Farmer's specially concurring statement clarifies it succinctly:

HILLIER v. IGLESIAS, 901 So.2d 947 (Fla.App. 4 Dist. 2005)
Chief Justice FARMER, C.J., concurring specially.

“The only undisputed purpose for alimony recognized in the cases in this state — the recipient's need — is clearly lacking in this case. Even if she had a need for alimony when the marriage was dissolved, it is obvious that she no longer does.

The former wife's rationale for keeping alimony going is that it is necessary to allow her to live in the style to which they were accustomed during marriage. I believe she misunderstands the purpose behind the factor relating to standard of living. In fact I believe the cases have given this factor an importance far beyond its intended role.

The factors that the court is required to consider in fixing an amount of permanent alimony are specified by statute. § 61.08(2), Fla. Stat. (2005). The statute says:
"In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party. The court may consider any other factor necessary to do equity and justice between the parties."
Id. I note that the statute directs the court to consider all "relevant" factors but does not specify any listed factor as always relevant. I also note that the statute does not make any of these factors more important than another. Nor does the statute stipulate that any particular factor is always dispositive.

This listing of "relevant economic factors" was added to the statute in 1978 and was obviously part of the statute at the time Canakaris was decided in 1980. In amending the statute the legislature did not adopt a statutory standard for determining when to award alimony. In short, the legislature did not intend to overturn the line of cases (cited in the majority opinion) holding that the purpose of alimony is to provide the necessities of life to a needy former spouse. It is clear that the statute does not modify the foundation facts for all alimony awards, namely need and ability.

From the actual text employed in these statutory factors, I think it is clear that the standard-of-living factor is obviously not applicable in every case. For example, in a marriage of modest assets and income with only one spouse having income, it would be absurd to think the paying spouse could maintain two households at the same standard of living after the dissolution.

Dividing a standard of living on a $50,000 annual income into two new households does not result in the two halves each remaining at the $50,000 level. Clearly the standard-of-living factor must be intended to apply only when "equity" would make it so.

If the standard-of-living is not a super — or omnipresent — factor in setting the amount of alimony, it must have only a case specific, and more limited purpose. I think its intended use was to avoid having alimony set at bare subsistence levels when the standard of living during marriage was significantly better and the payor has the ability to pay more than minimum wage, so to speak. The middle class professional, as well as the wealthy plutocrat, who exposes the spouse to a standard during marriage beyond the mere necessaries of life should be required to do better than mere subsistence with alimony. The purpose of the standard-of-living factor, therefore, is not to equalize the post marital lifestyle. Instead it is intended to avoid allowing the payor who makes enough to get away with mere subsistence.

Beyond that concept I do not believe the standard-of-living factor has much, if anything at all, to do with setting the amount of alimony in many cases. I do not think it is even relevant to do equity where both former spouses have annual earnings in the upper 10% of all incomes in this country. And I certainly do not agree, as the former wife argues here, that it is an imperative requirement in maintaining alimony long after the recipient has attained the income level she enjoys. Cf. Kahn v. Kahn, 78 So.2d 367, 368 (Fla. 1955) ("We do not construe the marriage status, once achieved, as conferring on the former wife of a ship-wrecked marriage the right to live a life of veritable ease with no effort and little incentive on her part to apply such talent as she may possess to making her own way.").

In my opinion the essential need for any alimony at all is always relevant as a determinative factor. Because it is clear that the evidence in this case demonstrates beyond any doubt that
she no longer has any need for alimony, I would reverse on that issue and direct the trial court to enter an order terminating all alimony."

There you have it….the reasoning and justification behind alimony. This is what you should concentrate on when presenting your arguments before the court.

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