Florida Alimony Reform
* March 18th, 2015 – the House Civil Justice Subcommittee has approved the proposed alimony bill – unchanged at the moment. The companion bill is also moving through the Senate. This is the first step to the eventual presentation to the governor for signature. Be aware the exact text of the bill can change between now and a possible signature into law. Unlike 2013, this bill appears to have the backing of several influential factions in Florida, including the Florida Bar Family Law Section. That will increase the likelihood of the proposed bill becoming the law of Florida.
* February 24th, 2015 – House Bill 943 and Senate Bill 1248 have been filed for the 2015 legislative session. Both bills are initially identical and drastically change alimony law in Florida. If successful, the new alimony law would be effective on October 1st, 2015. There are many twists and turns during adoption of new laws in Florida. We plan to update this page with each revision of the new 2015 alimony reform bill.
Comparison of the Old and New Alimony Laws
Definition of “Income” for calculation purposes
Extensive list of income definitions. Encourages court to determine income at least at minimum wage. Includes personal use of business expenditures, worker’s comp, and disability. Specifically excludes gains or income within retirement accounts if the money is not taken out (prior to retirement age)
For the first time “Income” may be defined as “Potential Income.” This would be the amount that could be earned with best efforts.
Income has no exacting definition. The old statute refers to terms such as “earning capacity.”
Existing alimony law refers to vague terms such as “earning capacity.” The courts currently use this concept to create a fiction known as “imputed income.” Imputed income is a fictional income that a court may choose to assign to either or both spouses for the purpose of calculating alimony. It is a highly contested concept with very little consistency from court to court.
The new term “potential income” appears to represent an effort to clarify and standardize how judges treat unemployed or underemployed parties. Judges will be instructed to consider how much income a party can earn if they devote their best efforts.
Definition of “Underemployment”
“Underemployment” is a highly fought over term that indicates a person is purposely not earning their potential income. The new proposed statute defines underemployment as working part time, or taking an educational course that is not expected to increase income, or is not a reasonable fit with that person’s previous training and experience.
No exact definition of “Underemployment” in the statutes. This issue is left completely up to the discretion of the judge.
The proposed bill has extensive language targeting “underemployment.” Presumably the new language targets former spouses receiving alimony that make no effort to gain employment, or former spouses that take educational programs not likely to result in substantial future income. Readers should note the terms of the bill give guidance to judges but still leave a tremendous amount of discretion in the interpretation of each situation.
All calculations that depend on income
New proposed alimony law is very specific that all calculations should take into account Potential Income of each party.
No mention of Potential Income in old statute.
“Potential Income” is repeated throughout the proposed alimony law. The legislative intent of a new law is more clear when a specific term is frequently repeated. The courts are supposed to look at the intent of statutes when making decisions.
Amount of Alimony
New proposed guidelines determine the upper and lower end for an alimony award.
The lower end is 0.0125 X the number of years of marriage X the difference between the monthly gross incomes of the parties
The upper end is 0.020 X the number of years of marriage X the difference between the monthly gross incomes of the parties.
The resulting amounts appear to be significantly lower than current, average alimony awards.
No guidelines. The amount of alimony is almost completely up to the judge.
Right now you can conduct the same exact case in every county, and before every judge in the state of Florida, and come out with a hundred different outcomes. The entire country has been moving toward specific alimony calculations. This new law does not have a specific table of alimony – but comes closer to giving judges specific guidance. The new law calculates upper and lower figures for alimony.
Duration of Alimony
New proposed guidelines determine the upper and lower end for the length of an alimony award.
The lower end is 0.25 X the years of marriage
The upper end is 0.75 X the years of marriage
Marriages under 2 years are weighed heavily toward $0 alimony awards.
* This provision all but eliminates permanent alimony – in the favor of definite, shorter term awards.
No The law is separated into three categories: marriages under 7 years (no alimony), marriages between 7 and 16 years (short term alimony), and marriages over 17 years (permanent alimony). These brackets are guidelines. The judge still has incredible discretion.
Permanent alimony would be virtually dead. All other potential lengths of alimony obligations appear to be scaled back in duration. For the first time, the duration of alimony would track a specific formula.
Standard of Living After Divorce
New proposed statutes specifically state the standard of living for two households will be lower than a single-married household., and that alimony awards should consider that fact.
The goal of alimony is to maintain the marital standard of living. That is an unrealistic goal in the old statute.
Alimony attorneys currently point to the marital standard of living enjoyed by both parties during the marriage. One of the goals of current alimony law is to maintain that standard. A frequent complaint was about the impracticality of that standard. The new bill pegs the post-divorce standard of living at a point lower than the marital standard of living.
Encouragement to pursue future income
New proposed statutes has language that requires the court to consider whether a party could become better able to support themselves and reduce the need for alimony – by taking education or training opportunities.
The old statute has no requirement for a spouse to better themselves over time.
Absolute Maximum Payment
Total alimony and child support payment cannot exceed more than 55% of the payor’s net income.
It is rare but not unheard of for a payor of alimony to give up 80 to 90% of their income for alimony and child support. The 55% pegged in the new bill parallels a federal consumer law that prohibits creditors from garnishing more than a certain percentage of take home income.
Modification of Alimony
Expands and speeds up the circumstances which would allow a modification. If the recipient earns more income than an imputed (approximated income at the time of final judgement), the payor can immediately file for modification.
Stringent circumstances to open up a modification case.
It is currently very difficult to modify alimony. the new law opens up more possibilities for future modification.
Increase in Payor’s Income
Under most circumstances the payor of alimony may advance in their career or get pay increases without being subject to an upward modification case.
Most upward swings income may justify an upward modification
We believe the purpose behind this provision is to allow people to move on with their lives. Allowing a former spouse to constantly monitor the other former spouse’s income for the purpose of upward modification goes against the principle of moving on with your life.
Cohabitation (supportive relationships)
New proposal makes it significantly easier to prove there is cohabitation – as a reason to modify or terminate alimony. Also removes the definition that cohabitation necessarily requires living in the same spot at the time of the modification case. This is more in keeping with the original definition and intent of “Cohabitation.”
Existing cohabitation statute (supportive relationship statute) is difficult to prove.
The cohabitation statute was enacted years ago but courts never enforced it as envisioned. Many former spouses continued to play a cat and mouse game with hidden relationships that looked like, and acted like a marriage. The new proposed cohabitation language becomes more definite.
New proposal eliminates new spouses from the “fray.” The financial resources a new spouse brings to the situation are not relevant for alimony modifications. Also, the new spouse’s financial information is off limits in a new case.
New spouse’s are fair game.
New proposal makes it easier to retire and at that time terminate or reduce alimony.
The right to retire is inconsistent and varies dramatically from judge to judge.
This is additional language allowing former spouses to move on with their life. No longer will new spouses be pulled into an alimony fight.
Requires the side that unnecessarily promotes or defends against an alimony modification to pay fees to the other side. This is known in contract law as a “prevailing party” clause.
Requires the spouse with more money to pay or offset the cost of attorneys for both sides. This serves as an incentive to act unreasonable.
This language requires anyone playing unnecessary games to pay everyone’s attorneys.
How Does This New Law Apply to Existing Cases?
- The changes to how the length of alimony is calculated DOES NOT APPLY to existing judgments or modifications.
- The changes to how the total amount of alimony is calculated APPLIES to alimony modification cases still pending when the law takes effect,and any new modification cases filed.
- The new law cannot be the sole reason for reopening an old alimony judgment. There must be other valid reasons – such as substantially changed income, new employment prospects, ill health, retirement, etc.
Visit back to this page for updates
Old Alimony Bill – 2013 – 2014
* November 23rd, 2014 – Now that Governor Scott has retained his office, the possibility of some sort of alimony legislation has significantly increased. Look for new, proposed legislation sometime after the new year. Chances are high the proposed legislation will be a bit less ambitious and will contain relatively minor changes. But any change will present opportunities and challenges for both sides of alimony cases.
One personal observation on claims being made ….
Many opinionated speakers claim the system is corrupt, with attorneys and judges “pulling strings behind the scenes” for the purpose of raking in large amounts of money. I do not believe this is true. With the exception of the occasional bad examples of human traits, the legal system tends to do a pretty good job. There will always be attorneys, and there will always be judges. And attorneys will not stop trying to bring advantage to their clients. That is an integral part of a free country with an independent judicial system. Attorneys are not profiteers – they are simply doing the job entrusted to them by clients and the legal system. We have a large group of family law attorneys and at any given time we are fighting for various clients with many different types of goals. No matter what new alimony legislation brings us – will will endeavor to use those changes to the advantage of our own clients.
Attorney Howard Iken
* July 1, 2014 – No new news to date. It is thought the fate of alimony reform will rest on the winner of the 2014 Florida race for governor. There is doubt that Charlie Crist would consider signing an alimony reform bill – but there is no definite comment on the matter.
* May 3rd, 2014 – The legislative session in Florida is now over and there has not been any attempt to revive the bill for this year. It is official, alimony reform is dead until 2015.
* April 11th, 2014 – There is no visible legislative work being done on the alimony reform issue. A movie targeting the subject is circulating in various theaters in the country – Divorce Corp , described as “A shocking exposé of the inner workings of the $50 billion a year family law industry.”
* March 16th, 2014 – The sponsors of alimony reform vow to revive the bill in the 2015 legislative session. They believe Governor Scott would sign the bill if presented. A key takeaway is that any successful alimony legislation would strictly be dependent on Scott winning his reelection campaign. It is believe that Charlie Crist would decline to sign this proposed legislation.
* February 23rd, 2014 – The legislative sponsors of last year’s alimony bill have decided not to introduce a new bill for this year. For 2014, a new alimony law is a complete non-starter.
There are still many different mechanisms under current Florida alimony law that allow modification. These mechanisms allow petitions to raise alimony, decrease alimony, or terminate alimony. Changes in income, cohabitation, retirement, and remarriage are some of the more common options. If you were waiting on the results of attempted alimony legislation, it is time to come in for a free consultation.
* January 28th, 2014 – Details of the 2014 Alimony Reform Bill are starting to emerge. Representative Ritch Workman, one of the originators of last year’s bill has lowered the sights a bit, in an attempt to garner approval from Governor Scott. The elimination of permanent alimony will be dropped from the bill. The proposed alimony law will contain a variety of smaller fixes that would have less opposition. One fix planned is to include a presumption that “standard of living will decrease after divorce.” The legal effect of this hard-wired presumption would be to make it more difficult for judges to award alimony in certain cases. It would also have the effect of reducing the amount of alimony awards. Another possible fix would be to make it easier to reduce/terminate alimony upon retirement. As soon as the first bill is filed we will update the below chart.
* January 18th, 2014 – The consensus of many alimony attorneys is that 2014 will bring a similar new alimony law but with a bit of tinkering to make it more likely that Governor Scott will sign the bill. The one change we will likely see is the elimination of the retroactive effect of the law. In other words, unlike the 2013 proposed alimony law – the 2014 proposed alimony law will not affect any prior divorce orders. It will only affect future orders that are put into place after the new alimony law takes effect.
If you are in a current case and expect to pay alimony, your best bet is to delay your trial. If you are in a current case and expect to receive alimony, you may want to accelerate events.
We do offer second opinions for on-going cases. If you would benefit from a confidential second-look at your case, please arrange an appointment or telephone consult with Attorney Howard Iken
The 2013 Florida Alimony Reform Law was vetoed by Governor Scott.
Here is a quick overview of the new law as it was proposed in the 2013 bill.
Child Custody (Add on to alimony law)
Mandated starting point of 50/50 parenting time for child custody
No starting presumption for parenting percentage
Definition of a Long Term marriage
20 years or more, measured from the date of marriage to the date of filing the petition for divorce.
17 years or more, measured in the same way
Definition of a mid-term marriage
More than 11 years, but less than 20 years
More than 7 years, but less than 17 years
Definition of a Short-term marriage
Less than 11 years
Less than 7 years
Why these definitions matter: Definitions such as this determine initially whether alimony will be considered, the type of alimony, the length of alimony, and the amount considered.
No permanent alimony. It is completely eliminated as a category
Permanent alimony, also called permanent periodic alimony. This is the type of alimony that can last a lifetime. It is almost always modifiable. This is the most common form granted in long term marriages
Priority of Alimony Types to be Ordered
Priority of alimony in order: bridge-the-gap, rehabilitative, and any other form
No priority rules are in place
The types of alimony that will be remaining: Bridge-the-gap, rehabilitative, durational. These types are fixed term or short term and are given for a specific purpose. Bridge-the-gap is normally the shortest term. Rehabilitative is next and must be for a specific plan that restores the income-earning ability of the other spouse. Durational is potentially the longest term form of alimony
Court’s Justification for Decisions
There are stronger requirements for written reasoning on type of alimony, length, and the amount of alimony
There are requirements but not as strong and not as specific
Court shall first make a written determination that the other party has the ability to pay
Determination of need is the first consideration
The new 2013 alimony law build’s in new rules that mainly protect spouse’s that may be ordered to pay alimony. The new rule requiring an evaluation on “ability to pay” is a completely new approach and ensures no one will be ordered to pay an amount beyond their ability.
Courts were always required to detail reasons for their decisions, in writing, within the text of the final judgment. However, many judgments lacked those required reasons. The new 2013 law strengthens the need for written justification and will have the effect of forcing courts to make a more thoughtful decision that is based on actual facts.
Marital Standard of Living
A court cannot consider the standard of living during the marriage as a way to determine the need for alimony. And the starting point of consideration is that both parties will have a lower standard of living after the marriage
The standard of living is frequently used as a desired living standard for the future – and provides justification for setting a given amount of alimony
Live Insurance to Guarantee Future Alimony Payments
Life insurance to secure alimony can only be granted upon a showing of special circumstances (reasoning above and beyond normal, everyday situations). The availability, cost, and financial impact of purchasing life insurance must be considered in the overall decision. The amount of life insurance is modifiable downward if alimony is reduced
The payer of alimony is routinely ordered to arrange for life insurance. The courts that order life insurance frequently ignore the availability and cost of the insurance. There is no set mechanism to later reduce the amount of life insurance if the underlying alimony payment is reduced
Supportive relationships – Cohabitation – person receiving alimony
A Court SHALL reduce or terminate alimony upon a showing of cohabitation by the person receiving alimony
The Court MAY reduce alimony upon showing of cohabitation
Supportive relationships – Cohabitation – person paying alimony
Cohabitation may not be used as a reason to increase someone’s alimony obligation
Any source of income, even from a significant other may trigger a modification
Short term marriages – under 11 years
The court can award durational alimony for a period but for now longer than 50 % of the marriage length and must not exceed 25 % of the payer’s gross income
Durational alimony can be for the amount of years of the marriage. There is no cap
Mid-term marriage – 11 – 20 years
Alimony is capped at 35 % of payer’s gross income
There is no cap
Long-term marriage – 20 years and over
Alimony is capped at 38% of payer’s gross income
There is no cap
Income from outside the marriage
Income from outside the marriage, that was not relied upon to support the marriage cannot be considered in an alimony decision
All sources of income or resources may be considered
Income and Assets of new spouse
Income and assets of a new spouse cannot be considered in an alimony modification
Income and assets of a later spouse may be considered in any modification
Later Income Increase & Modification of Alimony
An increase in income must last one continuous year before used as a reason for a attempted upward modification
Any increase, at any time may open up the subject of modification – even if the increase is short term
Alimony Modification When Child Support Ends
Child support termination may not be used as a reason to modify alimony
Alimony may be modified on a showing that more money is available due to child support termination
Retirement & termination or modification of Alimony
Retirement is defined as a reason for modification or termination of alimony. The petition may be filed in anticipation of retirement (before the actual retirement)
Retirement is considered and there is a right to terminate. But that right is not as defined as it will be under the new statute. A petition normally must be filed at the time of retirement – not before
Attorney fees awarded for unnecessary litigation (drawing out cases)
The court may award attorney fees against a party that unnecessarily drags out an alimony modification case
Attorney fees are mostly awarded to the person earning the lower income – regardless of conduct during the case