How Need Vs Ability Is Weighed In Determining Alimony. Discussion With RIO ROCKET

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

RIO ROCKET (00:12):
So in that example, two people get married at 20, let’s say they get divorced at 40. There is potential for lifetime alimony to be awarded in the state of Florida

Matthew Brickman (00:21):
Potential because it’s more than 17 years potential.

RIO ROCKET (00:26):
Why would 17 make a difference between..14, 18? What’s the difference?

Matthew Brickman (00:34):
It’s a threshold. That it’s a threshold that somebody created, pulled it outta the air. Another group agreed on it, and they wrote it into a law. I dunno, <laugh>, like why, why 18 and not 30? I don’t know.

RIO ROCKET (00:48):
Right. So if you’re going to get divorced, get divorced before you hit= your 17th anniversary.

Matthew Brickman (00:55):
So, you know how many times I’ve seen that happen? Oh, I have seen that. Where they’re like, they did this, it, they did this on purpose. And of course that just aggravates the entire divorce because, you know, and, and, and I’ll tell you, I’m the guy in both rooms. Right, right,

RIO ROCKET (01:15):
Right.

Matthew Brickman (01:16):
There’s the accusation and then there’s the denial outside of the rooms. Right. Rooms sometimes Rio, it is exactly that. It’s like, look, don’t do, do not say anything, but I’m, yeah, I saw this coming. I’m making good money. And there is no way.

RIO ROCKET (01:34):
Right.

Matthew Brickman (01:34):
And that sucks because, you know, you know, you and I had, had had a conversation, I think Sydney and I have even had a conversation on alimony about, um, one, one of the divorces I did years ago was in Sweden and Sweden. I found out after the fact has one of the, I actually, I think it, it is the highest co-parenting rate of any country in the world. And I was like, well, that’s interesting, but what was interesting when I did this divorce, um, and I’ve done divorces in other countries, I’ve done other states. And so as a mediator, I need to find out their laws. I can’t go, okay, well, we’re just gonna apply Florida law. You can’t apply Florida law on a Tennessee divorce. That’s just not how it works. Um, in fact, I can’t even use the same forms.

Matthew Brickman (02:14):
They have different forms. And so, um, I, I, um, I researched Swedish law, and Swedish law almost mirrored Florida law, 50 50 equitable distribution. Um, they do have 50 50 time sharing with the, with with the kids. It’s not up to judicial discretion. Everybo, it’s 50 50 periods straight across the board. Um, which is interesting because people, you know, it’s like two people are dating, they’re thinking about getting married, they get married, they’re thinking about having kids. They know that if this thing does not work out, uh, it’s 50 50. Like they know that before they even, like, there, there’s, there’s no surprises. Like what? Now, now, now I’ve got 50 50. I don’t wanna give them 50 50. It’s like, no, you know that before you have kids. But when it comes to alimony, there’s no alimony of any type, which then if you know, um, that, that there’s no alimony ever, you might make a different decision within the confines of the marriage.

Matthew Brickman (03:09):
So, you know, a mom or a dad, and I’ve had ’em both, um, may not give up a career to be a stay-at-home mom or a stay-at-home dad. They may not give it up because they are not getting compensated for quitting their job, losing that income, losing their, um, uh, tenure or whatnot at their job. Like, no. And so guess what? Now they make a different decision knowing that there’s no alimony. It’s like, well, I’m not, I’m not quitting. Well, I’m not quitting. Okay, well I guess we need to, we need to figure this out. All right, should we get a nanny? Should we get daycare? Do we get a babysit? Like, and they make different decisions in the us you know, we know, um, that nationally, um, I think it’s 50 for 50%, 51% of first time marriages end in divorce. Um, and you know, I commonly joke, okay, so if you go to the airport to get on an airplane, you look out on the tarmac and you see those planes and you count ’em and you go, okay, half of ’em are gonna fall outta the sky. Are you gonna get on your plane? <laugh>, maybe not, you know,

RIO ROCKET (04:14):
Parachute backup plane, which we would call a prenuptial in the legal world, I guess.

Matthew Brickman (04:20):
Yes, yes. So prenuptial or postnuptial, and we’ll get to that in a second. Um, for like, you know, okay, so how do we, how, how do we deal with the existing laws we have in the book? So, so again, in, you know, in in, in the United States, we’ve got, um, alimony. And so, you know, once someone may, may give it up and they may give it up at the moment thinking it’s a great idea. And then when they’re getting divorced, oh, Rio, I can’t tell you how many times people have said they made me quit my job. I’m like, really? Like, what are they a dictator? Uh, they made you like, put a gun to your head in your marriage and you were their spouse and you kept sleeping with them and you had a couple more kids too, and they made you like really, um, no, that was a choice that you made. And now they, and, and I’ll tell you Rio, it’s pretty bad too, when they do make that choice and then they get to the end of their yellow brick road and they find out that they have a need, but there’s no ability to pay and they gave it up and they’re not getting paid.

Matthew Brickman (05:23):
Do you think that’s gonna impede on their ability to co-parent? Absolutely. There’s resentment, there’s entitlement, there’s anger. Like, and so their ability to co-parent poison the, well turn the kids against the other, like project all of their anger and frustrations onto the next generation. Oh, absolutely. Opposed to if there was no alimony, well then you make different choices,

RIO ROCKET (05:47):
Right? I mean, I, I always look at, so I’ve never been married, never been divorced, obviously, and, you know, never have gone through any type of legal proceeding, whereas, um, assets would be redistributed or split in any, in any any way. However, I have many friends that have, so I always look at it this way, whereas let’s say you have a married couple and one spouse makes, they net a million, they’ve got a nice business, they net a million every year, and the other spouse nets 40 k, they’re a teacher. And you go through this relationship 10, 20 years and at the end, at the end, if there is an end a divorce, those assets are going to be split. Now, let’s just say for example, the school teacher who makes 40 k is the mother of three children. So the court would like the children to stay in that home, right? And they’re going to allow her to stay in the home. She’ll keep her job, uh, you know, she’ll have a car and whatever else, you know, the furniture and whatever other things associated with having that home. Usually there would be some settlement paid at the end, correct?

Matthew Brickman (07:08):
Yeah. I mean either for equitable distribution or possibly alimony. I mean, it, it, it depends, I mean, right?

RIO ROCKET (07:16):
Yeah. So Florida’s equitable distribution, correct? Correct. Okay. Which,

Matthew Brickman (07:21):
Which, let me, lemme just define equitable cuz some people think it’s equal, and some people, and some people think it’s fair. Well, it’s, it’s neither right? It’s not, it doesn’t have to be equal or fair, it’s equitable. And that can be a combination. Um, but generally it is 50 50 unless there’s what we term marital dissipation and waste. So say that somebody had an affair, we’re a no fault state, so that doesn’t matter and you’re not gonna get penalized for it. But if you were taking your money, which you made inside the marriage, which is not yours and mine, it’s ours, and you were spending it on an extramarital affair, well then there could be a reduction of equal.

RIO ROCKET (08:06):
Hmm. Um, but leaving infidelity aside, you know, let’s just say the marriage was there, there was nothing extramarital occurring. Yeah. And we get to the, the end 17 years, we get to the end and there is a settlement made, and obviously the per, the spouse that makes 1 million will obviously pay more to the, uh, spouse that makes 40 K. But wh wh where is, where is the word? How does the word equitable come into play when I mean, you would, you would never have a, it’s almost like, for example, from the day they get married every year forward, he deposits $500,000 into her bank account and she deposits $20,000 into his bank account for 17 straight years. I don’t see that as fair, equal or equitable because it’s just so lopsided. You know, it’s not, I, I believe that something should be awarded, but 50 50 when that’s not 50 50.

RIO ROCKET (09:06):
Because if sh if let’s say it’s a mother and a father and the mother house, uh, child, children, child support, uh, vehicles, transportation, the husband has to move out, so he has to get another home. And then you’re splitting everything they made together that’s not 50 because, uh, he’s actually paying out more. If he purchased that home, those cars, those boats, the furnishings paid the, you know, the majority of the mortgage and the bills. It’s not 50 50 at all. It’s, you know, it’s like 70 30 or whatever it is, 80 20 even. So I don’t, I don’t see where those words even apply to those situations. There should be some other form of calculation that implement so that there just isn’t such, I think if you can remove that harsh emotional component to divorce, uh, we have happier people and we wouldn’t have so much, uh, conflict post.

Matthew Brickman (10:06):
Yeah.

RIO ROCKET (10:07):
The children as well, and I’m thinking about the children so that they don’t have to grow up in co-parenting is difficult in itself, let alone when you have your mother and father Absolutely. Who hate each other because they’re so far apart on terms. Yeah. You

Matthew Brickman (10:22):
Get what? I’m so, so, so while, while you were talking, I was, I was looking at this going, okay, let me, you know, let me actually just get some numbers. So for example, if the husband is making a million a year, right? Mm-hmm.

RIO ROCKET (10:36):
<affirmative>,

Matthew Brickman (10:36):
If she’s making 40,000 a year, like you said, right?

RIO ROCKET (10:39):
Yes.

Matthew Brickman (10:40):
So for child support purposes, what they do is they take his money, they take her money, and they put it into our money. And why? It’s just the law for marriage. Once you get married, you, everything’s co-mingled and fine, it’s now ours. It, it, and it doesn’t matter who makes, it, doesn’t matter whose name is on it. If you, if it’s, it’s marital. Okay? Now, for child support purposes, let’s say that he makes a millions, she makes 40,000, it would, we would, we would put that in with the day with their, uh, uh, time sharing and then medical insurance and daycare costs and it spits out a number, okay? But then there are things that are in addition to child support, so like mutually agreed upon extracurricular activities, uncovered medical, uh, beginning of the year, school supplies and school uniforms, things that are extra, right? So in child support, what we do is we look at line item three, which says percent of financial responsibility, which is really what you’re talking about. You’re like, look, why are they splitting 50 50 if he’s making a million? Like, like for example, he, you know, he would deposit half of his money, which is, is 500,000 in accountant she’d deposit her, which is 20. Well, that’s not accurate. Like they’re not contributing the same. So why is she entitled to it? Right?

RIO ROCKET (12:01):
50 partnership, if we all know if, if you and I go to purchase, uh, a home together, a home costs $500,000, but I pay 400, you pay 100. We didn’t go in 50 50. So in this situation,

Matthew Brickman (12:14):
Unless, unless you’re married, then it doesn’t matter. It is 50 50. But even though you didn’t contribute. So when I look at line item three, Rio, it says percentage of responsibility, uh, the father or the husband making a million dollars a year, her making 40,000 a year, he is putting into the pot 94.5% or 95% and she’s putting in five. So then I guess you’re saying, well, okay, so then maybe that should be put into consideration with a calculation of what alimony would be like. Why is she getting 50 when she’s actually only contributing 5%

RIO ROCKET (12:58):
Of, of course then yeah, the math doesn’t work

Matthew Brickman (13:02):
And the math never works. Like child support makes no sense whatsoever. Like, you know, I mean child, like, and, and in alimony. I mean, here’s, here’s the thing. She, she wouldn’t get, all right, let me, let me just play with a number. All right? So let me, let me just play with some numbers and, um, and let’s, let’s actually just look at then how this works. So let’s say for example here that we’ve got a husband that makes a hun a million and she makes 40 a year. Okay? So then usually if we go to where, um, in, in the software where we go to a support analysis, okay, we ha again, before we do alimony is one of the last things we can look at because we’ve gotta look at, again, under the statute, we’ve gotta look at parenting plan, equitable distribution, we’ve gotta look at child support, we’ve gotta look at those things. So we do everything else first. So let’s just say that they have one child, they’re gonna alternate the tax exemptions, yeah. Um, every other year. And let’s just say that they have 50, 50 times sharing, okay? Mm-hmm. <affirmative>. And we’re not even gonna talk about daycare after care or any medical insurance costs. We’re just gonna go with the bottom basement raw number, okay? So child support for someone who’s making a million, another person making 40,000, if there’s 50 50 child support is $2,525 per month, that’s child support, okay? Mm-hmm. <affirmative>

RIO ROCKET (14:36):
Her shot.

Matthew Brickman (14:37):
Yeah. Well, well, no, we’re only, we’re only talking one child.

RIO ROCKET (14:41):
Okay? We’re

Matthew Brickman (14:42):
Only talking one child. Now let’s, let’s add a child. Let’s just say same, same factors, but now there’s two children, so they’re gonna alternate. So for two children it’s $3,800. It doesn’t, it it, it’s not that it double, it’s not that it’s 25 and now you get another 25. No, there’s the, there’s a whole calculation and it’s a lot like doing taxes. Um, but let’s go back, let’s, let’s just, I, I don’t want to kill a child, but we’re just gonna pretend that they never existed. So we’re gonna go back to one child, okay? Mm-hmm. <affirmative>. So one child. So then what we do in the software, um, and let me, let me come over and show you What we show people in the software is we come, um, we go over to um, an analysis, we go to alimony and we go to Florida alimony calculator.

Matthew Brickman (15:34):
This was the alimony under senate bill two 50 past and vetoed. So this is not law, but this gives us somewhat of a sort of kind of rough idea. Still, you gotta get past need and ability. But let’s say that they do, like you said, Hey look, they make a million dollars, she makes 40,000. He’s, he, he’s got the ability, right? So what we do is, let’s say that they were married January 1st, 2000, and let’s say that they filed, um, October 1st, 2022. So what this does is this goes to and says, okay, whole years of marriage, there’s 22, so years of marriage for calculation amount 20. And it says, okay, their differences in their gross incomes is $80,000. Okay? So then there’s a low threshold, a high threshold of money, um, and time. So it’s 15 to possibly 20% was how that, that that particular bill was structured.

Matthew Brickman (16:38):
And then for duration is a quarter to three quarters of the length of their marriage. So potential exposure could be somewhere between 24,030 $2,000 per month and somewhere between five and a half years and 16 and a half years for a 22 year marriage. It’s not a lifetime sentence because under this proposal, this was to get rid of lifetime $32,000 per month. Possibly, possibly. Now, here’s the deal, Rio, here’s the deal though. Her need may not be 32, it’s need versus ability. So let’s say that that, let’s say that she does her financial affidavit and her need is 12,000. Just because he has a surplus more than that does not mean that she gets that mm-hmm. <affirmative>, it’s, it’s based on need, but we don’t have, this is not what we have. This, this helps practitioners and attorneys and and whatnot have somewhat of a rough idea.

Matthew Brickman (17:46):
But this is what we do. Cuz this is generally what the courts look at. And where I found this out was I found this out from a number of forensic accountants. So we’re talking multimillion divorces, just like we’re discussing here, okay? And these forensic accountants come in, start digging, start looking, and they also have a pulse on what is the court doing? What are the judges doing? What does the law say regarding this? And so what we do is we know that if he’s making a million dollars a year, that’s $83,000 a month, she’s making 33,000, or I mean, sorry, 3,300 a month. And we know that the child support is 25 30, so it builds child support in here and then it goes through and it gives us their nets. What we look at here is we come over and look at this pie, or we can look at line item seven of combined income.

Matthew Brickman (18:45):
Generally the judges, and again, this is general, this noth, nothing’s written in stone and the, and the courts have discretion, but generally the courts try to get the receiver somewhere between 35 and maybe 45%. Well, what’s between 35 and 45%? Rio? 40 40, yeah, it’s generally where they land. So right now, remember I told you that without any child support, he brings 95% to the table, she brings 5% to the table, right? Mm-hmm. <affirmative> Well with the child, just the child support alone, it puts ’em at a 90 10, she’s got an extra 5% just from child support. And in Florida child support is free money. It’s not taxable, it’s not tax deductible. And alimony is no longer taxable or tax deductible. So it’s all free money. So that’s why then it’s not even in the calculation for taking out taxes or anything, they’re just taking taxes out of their general income.

Matthew Brickman (19:47):
So then now, now we play with this number to try to figure out how do we get to about 40%, give or take. So we’ll come back over here and we have a, we have a button that says, okay, amount and duration. So let’s, let’s just jump in here with, uh, 25,000. Got see $25,000 a month. 50 50 inappropriate. It put 50.3 7, 49 0.63. Nope, wrong number, not even close. <laugh>. So let’s go here, let’s go 18,000. Um, that’s better. 62 38, that’s a better number, right? Let’s come in. 19 five. Oh, 19 five is too much. That’s 59 41. Um, 59. Oh no, no, you could do that. 60 40. There you go.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.