The law regarding alimony contains several nuances. One of these is a statutory rule that says that the amount of evidence a spouse must offer in order to obtain permanent alimony differs based upon how long the couple was married. This rule recently led to the reversal of a Tampa court’s decision to deny a wife permanent alimony, since the 2d District Court of Appeal concluded that the lower court denied the wife’s permanent alimony request based upon the wrong standard of proof.
In Irene and Randy Banks’ case, theirs was a long-term marriage, having wedded before NASA launched the first space shuttle or the University of Miami won its first national football championship. The couple separated in 2011, with the wife filing for divorce shortly before the year’s end. At the time of their divorce, the husband made $90,000 a year and received a military pension that paid him almost $2,300 per month. The wife was unemployed but, in the trial court’s opinion, had a ability to earn $25,000 per year.
The court granted the wife temporary alimony of $1,500 per month for two years, which stood in contrast to the permanent alimony she had requested. The wife promptly launched an appeal, which was successful. The appeals courts deemed some parts of the trial court’s judgment facially erroneous, including the issue of permanent alimony. The trial court had denied the award because the wife failed to show her entitlement by clear and convincing evidence.
“Clear and convincing evidence” is an intermediate level of proof, requiring enough evidence to make a position significantly more likely to be true than not. It is not as high as the “beyond a reasonable doubt” standard used in criminal matters, but it requires more proof than the “preponderance of the evidence” level, which merely requires that more than 50% of the evidence supports the position asserted.
The problem with the trial court’s ruling in the Banks case was that it set the bar of proof too high, the appeals court decided. If the Bankses’ marriage had been one of moderate duration (7-17 years), the clear and convincing evidence standard would have been the correct one under the statute. When a marriage is a long-term one (more than 17 years), the law only requires enough proof to show that an award of permanent alimony is more likely than not to be appropriate, rather than proving it by the higher clear and convincing evidence standard.
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The appeals court also gave a strong hint that this case offered enough proof to show the wife’s need for at least some amount of permanent alimony. The court highlighted the couple’s lengthy marriage (33 years), the wife’s advanced age (63), her employment status (unemployed), and the husband’s vastly superior earning capacity in stating that “the trial court … should consider making an award of at least a nominal amount of permanent periodic alimony.”
The legal rules of divorce, including equitable distribution and alimony, have many details and complexities. For legal representation offering in-depth knowledge of the law and its applications, talk to the South Florida family law attorneys at Sandy T. Fox, P.A. Our attorneys can help you work to obtain the outcome you need. Contact us online or by calling (800) 596-0579 to schedule a confidential consultation.
More blog posts:
Wife’s Self-Imposed Unemployment Factors into Alimony Calculation, Fort Lauderdale Divorce Lawyer Blog, June 12, 2015
Appeals Court Reverses Lower Court’s Refusal to Award Wife Permanent Alimony, Fort Lauderdale Divorce Lawyer Blog, Feb. 26, 2015