March 29, 2013 ·
By Mike Gora
For the second year the Florida Legislature has been asked by men in the Senate and House in Tallahassee to re-write the law concerning alimony by eliminating permanent alimony from Chapter 61 of the Florida Statutes which contains the dissolution of marriage laws.
A comprehensive explanation of the proposed new statute appears below, prepared by members of the Family Law Section of The Florida Bar.
Will there be an alimony award? The answer depends on the response to four questions:
1. Does the spouse requesting alimony actually need it?
The person seeking alimony must prove that he or she needs alimony, but need alone is not enough to receive an alimony award.
2. Is the spouse being asked to pay alimony (the “payor”) able to pay alimony?
Even if the requesting spouse proves that he or she needs alimony, it cannot be awarded if the other spouse does not have the ability to pay support.
3. How long should the recipient spouse receive alimony?
If the spouse asking for alimony proves he or she needs alimony AND the court finds that the other spouse is able to pay alimony, then the court will consider a number of factors to decide how long the alimony award should be. Those factors include the length of the marriage and the requesting spouse’s current income and future earning ability.
4. What types of alimony are there and how does the court decide which type is appropriate?
Florida has bridge-the-gap, rehabilitative, durational, permanent, and lump sum alimony – or a combination, depending upon the facts of the case. Bridge-the-gap alimony can only be awarded for up to two years. The purpose of rehabilitative alimony is to help the requesting spouse become self-sufficient through training or education and requires a detailed training or educational plan. Durational alimony is awarded where permanent alimony is not needed and cannot be awarded for an amount of time longer than the length of the marriage. Lump sum alimony is infrequently awarded and only where necessary for support in unusual circumstances or where necessary for use as an equalizing payment.
Florida courts do not routinely award permanent alimony. Florida courts can ONLY award permanent alimony after making findings of fact that no other form of alimony is fair and reasonable. Before awarding permanent alimony, the court must first determine that rehabilitative alimony, bridge-the-gap alimony, durational alimony, lump-sum alimony or some combination of the above will NOT provide the spouse with the ability to become self-sufficient. Permanent alimony awards are almost always ONLY made in long term marriages where the incomes of the two spouses are very disparate.
Permanent alimony can be modified. Courts may reduce or terminate a permanent alimony award based upon substantial changes in the circumstances of either the payor or the recipient spouse, including retirement, the existence of a supportive relationship, an increase in the income (and decreased need) of a recipient spouse, or a reduction in the income of the payor spouse. Permanent alimony terminates automatically if the recipient spouse remarries.
Florida courts cannot order permanent non-modifiable alimony. Sometimes, for a variety of reason, parties AGREE to non modifiable alimony. If they do so agree, in writing, then the court cannot modify the alimony obligation. This is the ONLY circumstance under which the courts cannot modify alimony. Furthermore, the court does NOT have the authority to order permanent non-modifiable alimony.
FACTS ABOUT HB 231/SB 718
HB 231/SB 718 abolishes permanent alimony.
Although Florida courts do not routinely award permanent alimony and trial courts must make a specific finding that “no other form of alimony is fair and reasonable under the circumstances of the parties”, this bill completely eliminates permanent alimony awards which are to provide for the needs and necessities of life as they were established during the marriage for the spouse who lacks the financial ability to meet those needs following a divorce. Eliminating permanent alimony would cause devastating effects on spouses who sacrificed their careers to support their families through raising children, caring for the home or otherwise performing the duties of a traditional marriage, or on ill or disabled spouses who are unable to work and will never be able to support themselves.
HB 231/SB 718 includes a defined alimony amount based on a formula that averages the incomes of both spouses.
Current Florida statutes require the courts to base the amount of an alimony award on 10 factors, including the needs and necessities of life as established during the parties’ marriage. A formula would eliminate the discretion the courts need to properly address the relevant factors. The vast majority of states, including Florida, require the courts to consider factors on a case by case basis.
HB 231/SB 718 limits all alimony awards to 50% of the length of the marriage.
The courts currently have the discretion to determine the length of an alimony award based upon factors provided in Florida statutes. Eliminating the court’s discretion and restricting alimony awards to half the length of the marriage would detrimentally affect many recipient spouses who, due to decisions made by both parties during the marriage, are unable to become self-supporting at any point in the future and who will end up living in poverty or seeking the state’s assistance.
As written, HB 231/SB 718 will open the floodgates of new court filings.
The proposed legislation creates the ability to file for a modification based on the new law alone, without requiring any change in financial circumstances. In fiscal year 2011-2012, over 202,606 cases were reopened for modification or other reasons. If this bill becomes law, current alimony payors will be able to change their alimony obligations (court-imposed or agreed to) based solely on the statutory changes. This would cause a rash of filings by alimony payors. Litigation would increase significantly, overwhelming Florida’s already overburdened family court system. Plus, this bill would significantly impair the concept of the sanctity of contracts, by allowing parties who negotiated and entered into contracts in which they agreed to pay support to return to court to undo those agreements based upon the new law, ignoring how those changes would affect the support recipients, and the circumstances under which the provisions of the contract were determined and agreed to. By extension, if these contracts between spouses are allowed to be modified, it is conceivable that other bills affecting consumer law contracts will follow.
HB 231/SB 718 provides guidelines for bifurcation, or entering a judgment of marriage dissolution, but reserving jurisdiction to determine other matters such as property division or child support at a later date. Once the marriage is dissolved, there may be no incentive for one party or both parties to resolve the remaining aspects of the case and cause significant delay. Splitting the process can cause unresolved parental responsibility issues for minor children, overcrowded court dockets, added attorney’s fees and costs, and, significantly, may impact the availability of health and life insurance and result in the loss of asset protection.”
Michael H. Gora is a partner at Shapiro Blasi Wasserman & Gora P.A. and has been certified as an expert in family law by the Board of Specialization and Education of The Florida Bar. He can be reached at firstname.lastname@example.org, in Boca Raton, or (561) 477-7800.
By Online Staff