Alimony, a frequent hot issue in divorces, is currently a controversial topic facing Florida’s legislature as a recent proposal – HB 231 – aims to make significant changes to the current law on alimony.
These proposed changes, while sweeping, are nothing new, but instead represent the newest chapter in a continued quest for what many feel is necessary reform to Florida’s law on alimony, which has historically been dictated by common law. Last year at this time, the Florida Legislature proposed similar comprehensive changes to the alimony statute; however, the proposed legislation ultimately failed to pass, resulting in the alimony laws remaining as amended in 2010.
Before discussing the current proposed changes to the alimony statute, it is important to note the amendments enacted by the Florida Legislature in 2010, as many of these recent revisions are the target of the current bill. The 2010 amendments to Florida’s alimony statute included the following, which continue to remain in effect today:
- Codification of Florida case law that, before a court could award alimony, it is first required to make a specific factual determination as to whether either party has an actual need for alimony and whether either party has the ability to pay alimony.
- Classification of lengths of marriages as follows: “short-term” as less than 7 years, “moderate-term” as 7 to 17 years; and “long-term” as more than 17 years.
Codification of four (4) specific forms of alimony:
- Bridge-the-gap alimony, which is designed to support a spouse’s identifiable short-term needs and is awarded to help a spouse transition from being married to being single (i.e. “bridges-the-gap” between married life and single life). Per statute, this form of alimony cannot exceed two years, and is not modifiable in amount or duration.
- Rehabilitative alimony, which is awarded to assist a spouse receive the education, training or experience necessary to develop (or redevelop) skills or credentials that will ultimately lead to self-support. There must be a clearly defined plan in order to receive this form of award, which may be modified or terminated due to a “substantial change in circumstances”, or upon completion of or noncompliance with the plan.
- Durational alimony, which is designed to provide a party with financial assistance for a set period of time, can be awarded in short- or moderate-term marriages, or following a long-term marriage if there is no ongoing need for support on a permanent basis. The amount of durational alimony can be modified or terminated based upon a “substantial change in circumstances”; however, the length of the award – which may never be longer than the marriage itself – cannot be modified except under “exceptional circumstances.”
- Permanent alimony, which is awarded “to provide for the needs and necessities of life as established during the course of the parties’ marriage for a party who lacks the financial ability to meet his or her own needs and necessities of life following a dissolution of marriage.” Permanent alimony is generally awarded following marriages of long duration if deemed appropriate after consideration of various factors set forth in the same statute, but can also be awarded in moderate- and short-term marriages if clear and convincing evidence or exceptional circumstances, respectively, exist to support the award. In order to award permanent alimony, the court must find that no other form of alimony is fair and reasonable under the circumstances.
Although only amended in 2010, Florida’s alimony statutes, including many of the enactments detailed above, would be modified if the current alimony-reform bill were to pass. As proposed, the current bill seeks to:
- Eliminate permanent alimony – interestingly enough, as explained above, the Florida Legislature only just codified forms of alimony in 2010. As a result, the Florida Statutes now set forth four (4) specific forms of alimony, including permanent alimony, which this bill now seeks to eliminate;
Change the presumptions related to length of marriage, which are utilized to determine which form of alimony is most appropriate. Specifically, rather than the “7 years” and “17 years” discussed above, this bill seeks to re-classify lengths of marriage as follows:
- A “long-term marriage” means a marriage of more than 20 years;
- A “mid-term marriage” means a marriage of between 10 and 20 years; and
- A “short-term marriage” means a marriage of less than 10 years.
- Prioritize awards of alimony, such that the statute is amended from simply providing the court with discretion to grant the various forms of alimony, to requiring the court to prioritize an award of bridge-the-gap alimony, followed by rehabilitative alimony, over any other form of alimony;
- Create a rebuttable presumption that alimony automatically terminates upon the receipt spouse reaching retirement age – what the bill proposes is a reverse of the current law by stating that alimony will automatically terminate upon the recipient spouse’s reaching retirement age, thereby requiring said party to petition the court to allow the alimony to continue, rather than the payor spouse requesting a termination of alimony;
- Provides for a “substantial change in circumstances” as a matter of law for the reduction or termination of alimony based upon a payor spouse reaching a “reasonable retirement age for his or her profession”, or reaching the normal retirement age for social security benefits – Florida case law already contemplates consideration of retirement upon a request for modification or termination of an award of alimony; however, the bill makes such a fact a “substantial change in circumstances” as a matter of law;
- Eliminate consideration of the standard of living established during the marriage as a factor in determining alimony, which currently is the first factor listed for the court to consider in determining the type and amount of alimony to be awarded. In its place, the bill creates a new factor for the court to consider – “the net income and standard of living available to each party after the application of the alimony award” – and even provides for a rebuttable presumption that the parties will have a lower standard of living after divorce;
- Limit the authority of a court to consider adultery when determining alimony by providing that it may be considered only if the adultery caused significant depletion of marital assets or reduction in marital income;
- Limit the court’s ability to order a party to purchase or maintain life insurance as security for alimony obligations – the alimony statute currently permits a court to order life insurance to the extent necessary to protect an award of alimony. The bill proposes to limit the parameters for such an award by (1) requiring the life insurance ordered to be a decreasing term policy; and (2) requiring that any such security could only be awarded upon a showing of special circumstances;
- Modify the provisions concerning an award of durational alimony, by (1) requiring the court to first make written findings that an award of another form of alimony is not appropriate (this is significant because, since permanent alimony has been eliminated under this proposal, this means a court is required to first determine rehabilitative or bridge-the-gap alimony are inappropriate); and (2) limiting the length of an award of durational alimony, which under the current law cannot exceed the length of the marriage, to no longer than 50% of the length of the marriage, unless the party seeking alimony provides that exceptional circumstances justify the need for a longer award of alimony;
- Create a rebuttable presumption against awarding alimony for a short-term marriage, which by the proposed bill would be a marriage of less than 10 years. If a party can overcome the presumption by demonstrating a “clear and convincing” need for alimony, as well as the other party’s ability to pay for alimony, the court cannot award alimony that would exceed 20% of the payor spouse’s monthly net income, unless it determines, in written findings, that there is a need for additional alimony;
- Provide no presumption in favor of an award of alimony for a moderate-term marriage, thereby again requiring a party to provide, by a “preponderance of the evidence”, a need for alimony. The bill adds a similar income limitation by stating that a monthly alimony obligation cannot exceed 30% of the payor spouse’s monthly net income, unless it determines, in written findings, that there is a need for additional alimony;
- Create a rebuttable presumption in favor of awarding alimony for a long-term marriage, which by the proposed bill would be a marriage of more than 20 years. In awarding alimony, the court cannot award alimony that would exceed 33% of the payor spouse’s monthly net income, unless it determines, in written findings, that there is a need for additional alimony;
- Create presumptions for earning ability imputed to a recipient spouse – specifically, the bill sets forth an amount of income to be imputed to a recipient spouse who is unemployed based upon the number of years said party has been unemployed. By way of example, if the spouse has been unemployed for less than 1 year before the filing of a divorce, 90% of the party’s previous income is imputed, as opposed to a spouse who has been unemployed for more than 5 years, for which only 40% of the spouse’s previous income is imputed, or the current minimum wage, whichever is greater. The court, however, must reduce these imputations if the recipient spouse can demonstrate that he or she does not have the ability to earn the imputed income;
In addition to the foregoing, there are numerous other proposed changes to Florida’s alimony statutes, including changes to the reasons for modification and termination of alimony, as well as the addition of statutory language concerning bifurcation of the divorce proceeding based upon the length of time it is pending.
If this bill were to pass it would become effective July 1, 2013. It remains to be seen, however, whether the current legislation will suffer the same fate as last year’s alimony reform proposals. A controversial topic that affects many, this bill will no doubt be hotly contested. Opponents and proponents alike will be watchful of how HB 231, slated to go before the House Judiciary Committee, progresses through the legislature, as well as a similar bill (SB 718) filed with the Senate.© Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2013. All rights reserved.