An update on Florida alimony case law: are alimony guidelines a part of our future? .

Many state legislatures are considering the use of alimony guidelines, but few have adopted specific formulas to determine alimony awards. The Georgia and Nevada supreme courts have recommended the adoption of alimony guidelines. Michigan has an alimony guideline committee that has reviewed alimony guideline computer programs and recommends a particular one for use in that state. The developer of the Michigan alimony computer program has also recently developed software to determine alimony awards in Washington and Kentucky as well. Most areas that are using guidelines are doing so on a local or countywide basis.

Pennsylvania has gone a step further by taking alimony factors and incorporating them into actual monetary guidelines that are statutorily mandated in temporary alimony situations. (1) Before the adoption of the guidelines in 1989, all support, including child support and alimony, was determined by analyzing the income and expenses of the parties, their assets, and the standard of living. That analysis led to uneven results from case to case and court to court. (2) On September 6, 1989, the Pennsylvania Supreme Court promulgated new Rules of Civil Procedure which established the Uniform Support Guidelines (3) and mandated that temporary spousal support and child support be determined in accordance with the guidelines unless a deviation was warranted. The purpose of the Uniform Support Guidelines, which is explained in the comments of the rule, is to "promote (1) similar treatment of persons similarly situated, (2) a more equitable distribution of the financial responsibility for raising children, (3) settlement of support matters without court involvement, and (4) more efficient hearings where they are necessary." (4)

Section 3701, Pennsylvania Statutes, lists factors relevant to determining whether alimony is necessary and to determining the nature, amount, duration, and manner of payment. (5) Once the threshold determination that alimony is necessary is made in a particular case, [section] 4322, Pennsylvania Statutes, provides that child and spousal support during the pendency of the dissolution shall be awarded pursuant to a statewide guideline, "so persons similarly situated shall be treated similarly." (6)

The statutory guideline is based on the reasonable needs of the child or spouse seeking support and the ability to pay of the supporting spouse. The guideline emphasizes net incomes and earning capacities of the parties with allowances for special circumstances that warrant deviation from the guidelines. The philosophy underlying the guidelines is that support should be income based. When the guidelines are applied to the incomes of the parties, the result should determine the reasonable needs of the dependent spouse and the ability to pay of the supporting spouse.

Under Pennsylvania law, the amount of support to be awarded is determined under Rules 1910.11 and 1910.12, which provide the procedure to follow to ascertain the guideline amount. (7) The Pennsylvania rules of procedure setting forth the formulas to calculate spousal support may be found on page 88. (8)

Deviations from guideline support are allowed when the trier of fact specifies in writing the guideline amount of support and the reasons for, and findings to, justify the amount of the deviation. (10) The guidelines direct the trial court to calculate spousal support according to the formula in Rule 1910.16-4 and to deviate from the result if any of the factors provided in Rule 1910.16-5 apply.' (11)

In Mascaro v. Mascaro, 803 A.2d 1186, 1191 (Pa. 2002), the Pennsylvania Supreme Court noted that determining spousal support based upon the parties' net incomes and obligor's other support obligations "treats similarly situated persons similarly, which is the goal expressed in [section] 4322 of the Divorce Code." The court also noted that allowing for deviations prevents the "goal of uniformity from leading to an unnecessarily harsh result where findings of fact justify the amount of the deviation." (12)

Pennsylvania emphasizes parties' net incomes, not standard of living, which serves to avoid an inquiry into the parties' frugalness or extravagance. (13) The court pointed out that unlike child support calculations wherein the reasonable needs of a child are a consideration, the reasonable needs of a spouse are not a proper consideration when calculating spousal support. (14) Therefore the spousal support guidelines are valid even in high-income cases. (15)

Arkansas also provides for a temporary spousal support pursuant to guidelines. An administrative order on Arkansas child support guidelines states:

Section III. Calculation of Support

e. Spousal Support

The chart assumes that the custodian of dependent children is employed and is not a dependent. For the purposes of calculating temporary support only, a dependent custodian may be awarded 20% of the net take-home pay for his or her support in addition to any child support awarded. For final hearings, the court should consider all relevant factors, including the chart, in determining the amount of any spousal support to be paid. (16)

Similarly, New Mexico establishes temporary support by a Supreme Court rule that provides that each party has one half of any remaining income after fixed expenses are paid. (17)

Local guidelines in counties of several different states have been developed to promote uniformity of alimony awards. In Santa Clara, California, a guideline for determining alimony was implemented in 1977. Even though it is not statutorily mandated, much of the state of California has adopted the use of the Santa Clara formula as a guideline for establishing alimony awards. (18)

The "California Formula" is as follows:

   Payor's Net Income (19) --
   Child Support x 40%          --
   Minus Payee Net Income
   x 50%                        --
   TOTAL                        --

The total figure is the starting point for an alimony award prior to incorporating any deviations necessary to achieve a fair alimony award. (20) Some factors that may be considered to deviate from the initial guideline amount include whether the payor is making additional payments for the children's benefit such as private school tuition, whether the payor is responsible for all or most of the marital debts or whether the payor is making payments which directly benefit the payee such as for education, training, leisure activities, or trips with the children. Another consideration is whether the payor and payee are earning up to their potential.

The California Formula also includes guidelines for the duration of alimony based upon on the length of the marriage. If the marriage lasts less than 10 years, the alimony should be one-half the length of the months the parties were married. If the parties were married 10 to 20 years, the duration of alimony should be not less than the number of months in the following formula: (months married/240) x (months married). All support orders should terminate after the number of months equal to the length of the marriage unless otherwise agreed. (21)

The Kentucky Court of Appeals suggested a trial court use a maintenance formula which consisted of the following:

   Add the two net salaries of the
     husband and wife                    --
   Divide that number by two             --
   Subtract the wife's net income
     and the child support the husband
     was ordered to pay                  (--)
   Guideline Amount                       -- (22)

That formula was developed by the late Ralph Petrilli, a professor at the University of Louisville Law School. A professor at the Ohio State University School of Law, Joan Krauskopf, developed a similar formula. The Krauskopf formula uses a "Maintenance Chart."

   Difference in income between
     the ex-spouses               --
   Less total annual child
     support                      --
   Spousal support income
     factor                       --
   Number of years married
     times 1%                     --
   Duration of marriage
     factor plus 10%              --
   Proportion of spousal
     support (%) times
     income factor                --
   Annual alimony
     (maintenance)                -- (23)

Some practitioners in Washtenaw County, Michigan, use a more sophisticated formula that assigns weighted percentage points to statutory elements including length of marriage, age of spouse claiming alimony, income of spouse claiming alimony, and the education and training of the spouse claiming alimony. (24) The formula uses tables that correlate the factors into gross and weighted points which are totaled and compared to a five level scale that an attorney uses to evaluate the strength of the alimony claim. (25) The criticism of this formula is that it only considers four factors, which is insufficient to fairly evaluate an alimony claim.

The originator of the Washtenaw County Guidelines, Craig Ross, has developed computer software to determine alimony awards. His program has been endorsed by the Family Law Section of the State Bar of Michigan and Michigan's Alimony Guideline Committee.

Maricopa County, Arizona, has developed guidelines based on the American Law Institute's recommendations for when the marriage has lasted longer than five years and the obligee's earning capacity is no more than 75 percent of the obligor's. This guideline formula does not differentiate between marriages with children and without children. The guideline amount is determined by multiplying the difference between the parties' postdissolution incomes by a marital "duration" factor. The duration factor equals the number of years of marriage times .015, with a maximum value of .50. (26)

Johnson County, Kansas, has developed its own guidelines regarding maintenance based on the number of years of marriage and the difference in earning capacity of the spouses. (27) Section 5.6 of the Johnson County Family Law Guidelines deals with the amount of maintenance to award when there are no minor children. According to the formula, the maintenance should be determined by calculating 25 percent of the difference between the gross incomes of the parties up to a difference of $50,000 per year. For a difference over $50,000, add 22 percent of the excess. (28) When there are minor children, [section] 5.7 states that the maintenance should be determined by calculating 20 percent of the difference between the parties' gross incomes. (29) The alimony duration is addressed in [section] 5.8, which provides that alimony should not last longer than the number of years of marriage divided by 2.5 if the marriage is five years or less or, for marriages lasting greater than five years, two plus one third of the number of years of marriage. (30)

How Do Florida Cases Compare to Guidelines Around the Country?

The Alimony Guideline Chart at the end of this article compares the facts of five Florida cases as they are plugged into the Pennsylvania Statutory Guidelines, the California Formula, the Petrilli Formula (Kentucky), the Maricopa County Formula (Arizona), and the Johnson County Guidelines (Kansas). (31)

When the same numbers are used in the five different guideline formulas, five different alimony amounts are produced. In some instances the formula alimony was close to the alimony amount awarded by the Florida court. However, under some formulas, the guideline alimony amount was either much higher or much lower than the alimony actually awarded. There was no guideline formula that consistently aligned with the awards of Florida courts.

Conclusion

As to the amount of alimony, the five alimony guidelines compared to the Florida cases were mainly driven by income, thus the Florida statutory factors of need, standard of living, contributions to the marriage, and equitable distribution received by each party were not considered. These factors are very hard to quantify in order to determine an alimony award; and perhaps too hard to apply in a predictable way that supports the concept of just compensation. It is important to note the number of cases that are remanded to the trial court because of the trial court's initial failure to consider the different factors and to make findings of fact that support the award. The factors are so broadly interpreted that, without more weight given to some factors than others, it is arguable whether the factors provide any guidance at all.

Many appellate courts render opinions where the income of the parties and the alimony awarded are not mentioned in the discussion of whether the alimony award is an abuse of discretion. Those cases provide no guidance to the trial court and practitioner as to how income impacts the alimony award.

Even with the apparent inconsistencies in the current alimony analysis, Florida courts are loath to accept statutory direction that may be inappropriate in some cases. (32) However, perhaps a middle ground can be reached where an income formula can be used as a starting point, but other factors may be weighted and incorporated into the calculation.

For example, the length of the marriage would be given a weighted number: more weight for longer duration. Standard of living would also be given more weight in a more enduring marriage. Contributions to the marriage should not be measured. Instead, the courts should look at how the requesting party's ability to earn has been negatively impacted by the marriage through child rearing, caring for elderly parents, or relocating for the sake of the opposing party's career advancement. This negative impact should be a weighted factor that is incorporated into the guideline. The other Florida statutory factors would be similarly weighted.

Once all factors are weighted, they would be integrated into a formula similar to the Michigan calculation. This procedure would ensure that the trial court takes into account all the factors contemplated in the statute, and that the factors would be given a more uniform application. Rather than creating a strict system where the statutory factors are shunned in favor of an income approach, the opposite would occur. Parties would have a more consistent application of the statutory factors by both the trial and appellate courts. Fewer appellate cases would be sent back for findings of fact.

There is valid criticism of an alimony guideline approach. There is also valid criticism of the current decision-making process. Perhaps an improvement to the current approach that may provide needed consistency to promote truly just compensation is possible. The consistency may also promote settlement in cases where mounting attorney fees often prevent fair settlements and cause a harmful diminution of the marital estate.

Pennsylvania Formulas for Calculating Spousal Support

With Dependent Children

Obligor's Monthly Net Income (9)                                --

Less Obligor's support, alimony pendente lite or alimony
  obligations, if any, to children or former spouses who are
  not part of the action                                       (--)
Less Obligee's Monthly Net Income                              (--)
Subtotal                                                        --
Less Obligor's Total Child Support Obligation                  (--)
Subtotal                                                         --
Multiply by 30%                                                  --

Without Dependent Children

Obligor's Monthly Net Income                                    --

Less Obligor's support, alimony pendente lite or alimony
  obligations, if any, to children or former spouses who are
  not part of the action                                       (--)
Less Obligee's Monthly Net Income                              (--)
Subtotal                                                        --
Multiply by 40%                                                 --

Alimony Guideline Chart

Florida cases in       Husband's   Wife's      Years of   Child
which award of         income      income      marriage   support
alimony was                                               awarded
upheld

Tarkow v. Tarkow       $16,750     $1,000      26 years   N/A
805 So. 2d 854         per         (imputed)
(Fla. 2d DCA 2001)     month

Merkin v. Merkin       $11,000     $914        32 years   N/A
804 So. 2d 595         per         per
(Fla. 2d DCA 2002)     month       month

Griffing v. Griffing   $3,335      $708        19 years   $911
722 So. 2d 979         per         per                    per
(Fla. 5th DCA 1999)    month       month                  month

Escudero v.            $1,721      $998 per    23 + 9     N/A
Escudero               per         month       (parties
739 So. 2d 688         month                   married
(Fla. 5th DCA 1999)                            twice)

Thomas v. Thomas       $7,000      $1,760      14 years   $797
776 So. 2d 1092        per         per                    per
(Fla. 5th DCA 2001)    month       month                  month

Florida cases in       Actual    Alimony     Alimony      Alimony
which award of         alimony   under       under        under
alimony was            award     Pa.         California   Petrilli
upheld                           statutory   Formula      Formula
                                 guide-
                                 lines

Tarkow v. Tarkow       $8,000    $6,300      $6,200       $7,875
805 So. 2d 854         per       per         per          per
(Fla. 2d DCA 2001)     month     month       month        month

Merkin v. Merkin       $4,000    $4,034      $3,943       $5,043
804 So. 2d 595         per       per         per          per
(Fla. 2d DCA 2002)     month     month       month        month

Griffing v. Griffing   $565      $514        $616         $403
722 So. 2d 979         per       per         per          per
(Fla. 5th DCA 1999)    month     month       month        month

Escudero v.            $350      $289        $189         $362
Escudero               per       per         per          per
739 So. 2d 688         month     month       month        month
(Fla. 5th DCA 1999)

Thomas v. Thomas       $600      $1,333      $1,601       $1,823
776 So. 2d 1092        per       per         per          per
(Fla. 5th DCA 2001)    month     month       month        month

Florida cases in       Alimony      Alimony
which award of         under        under
alimony was            Maricopa     Johnson
upheld                 County       County
                       Formula      Guide-
                                    lines

Tarkow v. Tarkow       $6,143       $3,590
805 So. 2d 854         per          per
(Fla. 2d DCA 2001)     month        month

Merkin v. Merkin       $4,841       $2,344
804 So. 2d 595         per          per
(Fla. 2d DCA 2002)     month        month

Griffing v. Griffing   $762         $525
722 So. 2d 979         per          per
(Fla. 5th DCA 1999)    month        month

Escudero v.            $101 or      $181
Escudero               $347         per
739 So. 2d 688         (depend-     month
(Fla. 5th DCA 1999)    ing if
                       count all
                       yrs. or 9)

Thomas v. Thomas       $1,100       $1,048
776 So. 2d 1092        per          per
(Fla. 5th DCA 2001)    month        month

Annual Incomes were converted to monthly income by
dividing the yearly salary by 12.

Biweekly child support was converted to monthly
support by multiplying it by 2.15.

All figures have been rounded for ease of computation.

(1) 23 PA. CONS. STAT. [section] 4322 (2002).

(2) Prud'homme v. Prud'homme, 48 Pa. D. & C. 4th 182 (2000).

(3) Effective September 30, 1989.

(4) PA. R. C. P. 1910.16-1, explanatory comment.

(5) 23 PA. CONS. SWAT. [section] 3701 (2002).

(6) 23 PA. CONS. STAT. [section] 4322 (2002).

(7) PA. R. C. P. 1910.16-1.

(8) PA. R. C. P. 1910.16-4.

(9) Determined pursuant to Rule 1910.16-2, which deducts from monthly gross income taxes, FICA, and union dues. PA. R. C. P. 1910.16-2.

(10) PA. R. C. P. 1910.16-5.

(11) Mascaro v. Mascaro, 803 A.2d 1186, 1191 (Pa. 2002).

(12) Id. at 1193.

(13) Id.

(14) ld. at 1195.

(15) Id. at 1193.

(16) In Re: Administrative Order Number 10: Arkansas Child Support Guidelines, Supreme Court of Arkansas, January 31, 2002.

(17) Virginia R. Dugan and Jon A. Feder, Alimony Guidelines: Do They Work?, 25 FAMILY ADVOCATE 4, 21 (2003).

(18) Robert E. Gaston, Alimony: You are the Weakest Link!, 10 Nov. NEV. LAW. 36, 38 (2002).

(19) Net income is derived by taking the payor's gross income and deducting income tax and Social Security payments. Id.

(20) Id.

(21) Id.

(22) Marti E. Thurman, Maintenance: A Recognition of the Need for Guidelines, 33 U. LOUISVILLE J. FAM. L. 971, 972 (1995).

(23) Id. at 981.

(24) Id.

(25) Id.

(26) Ira Mark Ellman, The Maturing Law of Divorce Finances: Toward Rules and Guidelines, 33 FAM. L. Q. 801, 812 (1999).

(27) Johnson County Bar Association, Family Law Bench Bar Committee, Family Law Guidelines for Family Law Practice in Johnson County, Kansas, Revised February 2001.

(28) Id. at [section] 5.6.

(29) Id. at [section] 5.7.

(30) Id. at [section] 5.8.

(31) The authors did not compare the facts of the Florida cases to the Washtenaw County, Michigan, formula, as the Florida opinions did not contain enough information regarding statutory elements to determine how each element would be weighted under that complex formula.

(31) The authors polled all Florida family law judges in March 2003 asking their opinion of alimony guidelines. Of the 138 questionnaires propounded, 17 answers were received; the large majority objecting to statutorily mandated guidelines.