“Alimony reform” has been the
big news buzz over the past few weeks.
Last year I wrote that after the Florida Alimony Reform group made
limited progress with the Florida legislature in pushing through their “sour grapes” proposed legislative changes to alimony that
they would be back. I might now add that
they returned… with a vengence.
Last week the Florida Senate had the second
reading of Senate Bill 718, introduced by Senator +Kelli Stargel, entitled "An act relating to dissolution of
marriage;" and a page more of stuff. (if this sounds more like a comment made by
+Dave Barry, you’re right…I should only be fortunate enough to write about the
absurdities of our great state of Florida rather than have to practice a
profession within it) During that session,
a number of amendments to the bill were introduced by Senator +Arthenia Joyner (who,
candidly, at times seemed confused and flustered about what she was actually
introducing as an amendment). Most of
the amendments passed unanimously ( with, I kid you not, a determination of the
strength of the auditory “yeah” or “nay” votes, but this is our government at work). Below, I summarized a portion of the highlights of this
bill, as it now stands. Now, keep in mind, this bill is about 23 pages long, so
I’ll try to be concise and use “real words,” because we know lawyers don’t
really use “real words.” However, if you
ever read a legislative bill, you’d see they are not written in “real words”
either.
● “Long
term marriage” means one is married 20 years or more.Why is this important: In a long term marriage there is a presumption that the lower earning (or non-earning) spouse will be awarded alimony. HOWEVER, that presumption can be overcome (in other words, no alimony is awarded) by “clear and convincing evidence.” This means, essentially, one would have to show there is “no-way, no how” the spouse is entitled to, or the other spouse can pay alimony. The maximum amount one can receive for a long term marriage is 33 percent of the paying party’s net (after tax) income.
● “Mid-term
marriage” means one is married more than 10 years but less than 20 years.
Why this is important: In a
mid-term marriage there is neither a presumption for or against alimony.
Instead of “clear and convincing” evidence, either spouse merely needs to prove
by a “preponderance” of the evidence that alimony should or should not be paid. What does THIS mean? In short, it still gives
both sides a horse in the race, so to speak, and provides ample fodder for
attorneys to duke it out. It resolves
little, if anything. Oh, and by the way, the maximum amount of alimony that can
be awarded in a mid-term marriage is 30 percent of paying spouse’s net (after
tax) income.
● “Short-term marriage” means one lasting 10
years or less. (Wow, even still, I never had a client come in who was married
close to 10 years who said, wistfully, when asked the date of marriage, “Ah, it
seems like just yesterday…..”)
Why this is important: In a short-term marriage, there is a
presumption that NO alimony will be paid.
Again, this can be overcome by a preponderance of the evidence, again creating
grounds for battle, and providing discretion to a judge. Even
if one meets the burden of entitlement to alimony in a short-term marriage, the
maximum amount is 20 percent of paying spouse’s net (after tax) income.
And, of course, there is the “exception”
to the net income percentages to be used in calculating alimony, if the judge
determines there is a “need” for additional alimony. (Hey, what about the paying
party’s ability to pay more? Did they forget this or was it left out because
the drafters [or those pulling the strings connected to the drafters] just
assumed that any paying party had an ability to pay more than the new guideline
maximums?)
● Permanent alimony
is eliminated, leaving bridge-the-gap, rehabilitative and durational alimony,
(see below) which may be awarded in a combination and may be payable in
periodic payments, lump sum or both. A
combo platter may only be awarded to help the person become self supporting
(or, as they call it “achieve rehabilitation.”)● Bridge-the-gap alimony “shall be prioritized” followed by rehabilitative alimony over any other form. I guess that means, “Judge, find a way to award bridge-the-gap alimony. Bridge-the-gap alimony is for TWO YEARS AND TWO YEARS ONLY!!!!
● Rehabilitative alimony, in definition, has not really changed, and contemplates a person requesting alimony to present a detailed plan of how he/she is going to become self-supporting. Of course, as we all know, everyone who divorces at 50, after an 18 year marriage where that person’s job was raising the kids and caring for the home), can go out and rehabilitate to learn or start a new career and earn a decent living.
● Alimony AUTOMATICALLY terminates-if it hasn’t ended before- upon the paying spouse reaching “normal retirement age for social security retirement benefits.” However, using that “clear and convincing” standard again, if the alimony recipient shows the court a need for alimony to continue, and the paying party still has an ability to pay, then alimony may continue, but, it appears, for no longer than the maximum time the court initially awarded.
● In determining the need by a party to receive alimony and the ability of the other party to pay, no longer will the standard of living during the marriage be considered. So, if the parties lived high-on-the-hog, so to speak, while married, the recipient spouse should not expect to do so afterwards. The courts are, however, permitted to consider non-marital monies in calculating alimony if either party relied upon them during the marriage. (another concept that, in application, is clear as mud). The courts may, however, contemplate what each party’s standard of living will be after the marriage- but they “presume” that both will have a lower standard. The real question is how low…Low enough so the “recipient” now comes to the government for aid?
● Alimony awards may be secured (or perhaps guaranteed?) by life insurance or a bond, but only if the court finds “special circumstances” to do so. Of course, there is no definition of what these “special circumstances” might be.
● Durational alimony can be awarded in a short-term, mid-term or long-term marriage, provided the Court sets out specifically, in writing, why another form of alimony or combination, is “not appropriate.”
● Even so, the term for payment of durational alimony can be a maximum of one-half of the length of the marriage (that means for 20 years you max out after 10 years of alimony, IF you get that long) …unless the prospective alimony recipient can show no-way, no-how (that clear and convincing standard again) that this is fair, or, as the statute says, there are “exceptional circumstances justifying a longer alimony award.”
Now, I certainly understand, from an emotional level,
how a spouse previously ordered to pay permanent alimony, considered it a “life
sentence.” But “permanent” alimony is a bit of a misnomer. Permanent alimony ends if the recipient remarries or dies.( It also ends
when the paying party dies, but at that point I doubt that the payor cares
much) Permanent alimony was modifiable
if either pary (but more likely the paying spouse) had a substantial change in
circumstances. For example, if the
paying spouse lost a job and could not find another job paying as much, then
alimony could be modified downward.
Permanent alimony was modifiable at retirement (but, I agree, retirement
was not defined very well). Several years ago, a new statute made it modifiable
if the recipient engaged in a “substantial supportive relationship.” Again, as now, that created more litigation
than resolution because of some poorly defined portions of the statute.
Still, the total abolition of alimony
lasting any longer than half the term of the marriage seems a little
rough. Yes, there are the exceptional
circumstances, and that is what litigating is all about. Does the new bill make
some things more clear cut? Yes. Are
there aspects of the bill that are reasonable? Some. Will it keep parties from divorcing? Prospective
recipients-maybe; prospective payors-no…in fact they may be encouraged to shed
their spouses now knowing the “life sentence” has been repealed.
But
wait…there is more to this bill.
However, it still has not passed, although, candidly, it seems like the
deal was already done outside the Senate chambers. After the next reading…and the vote, I’ll discuss
the other aspects of this bill, including :
● Imputing (that means “making
up” in legalese) what one party’s income “should be” when calculating each party’s income;
● When one can modify alimony;
● How alimony and child support affect one another;
● Getting your divorce before everyone figures
out property rights, child support and alimony;
● Changing what YOUR alimony
is now as a result of the statute and WHEN you can do it
And then there’s the legislation making
changes to time sharing with the kids…. Another
day’s work!