Florida Alimony Reform
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Commentary and Latest News
by Robert Napper – Ayo and Iken Legal Correspondent
A Florida alimony reform bill continued to roll through the Senate as another committee gave it a stamp of approval this week in Tallahassee.
Senate Bill 1248 got a step closer to Gov. Rick Scott’s desk Tuesday after passing the Appropriations Committee unchanged in a 12-6 vote. A companion bill in the House is set for a hearing on its high-priority special calendar this week.
The debate over the bill proved as emotionally charged as ever as various factions made pitches to the committee for or against, while many lawyers and their existing and potential clients are eyeing how it will affect what happens in the courts.
Many opposing the bill, some fighting back tears, called it an affront to women who are the majority of alimony recipients. Florida National Organization for Women Barbara DeVane said the bill will particularly affect older women who sacrificed their careers for their husbands to raise children and found themselves in their 50s and 60s divorced with little work experience or time gaps in their resumes.
“You are going to throw women and children into poverty with this bill,” DeVane said.
Proponents of the bill including Alan Frisher, of the group Family Law Reform, said his organization of 13,000 members want a change and tied his commentary to Gov. Scott’s Let’s Get to the Work campaign he ran on in winning a second term. He criticized the climate current alimony laws create.
“If you are a receiver, you don’t want to work in lieu of possibly losing that alimony gravy train, if you are a payer of alimony, you don’t want to work because you’re fearful of being brought back to court now that you are earning more money,” he added.
Ironically, Frisher’s commentary irked a senator who supports the bill and the committee chair running the meeting.
“You should probably refrain from using the word gravy train when referring to women. I would appreciate it myself,” said Lizbeth Benacquisto, R-Fort Myers.
Other supporters on the committee turned to arguing for what the bill might mean for the courts and people going through the difficulty of divorce. The bill’s sponsor, Kelli Stargel, R-Lakeland, said her effort was to reduce litigation in a legal arena that is often the most contentious and drawn out.
“What we’re trying to do is limit litigation so it does not continue year after year after year fighting over old wounds in the divorce. We’ve provided certainty in this law so a person has an idea of what to expect. The judge still has judicial discretion,” Stargel said.
The most important aspect for Stargel and other supporters are guidelines that will be established by the new bill, which many say will curtail judgments from court to court that are vastly different throughout Florida.
The bill uses a specific calculation for determining the amount of alimony by using a low of end of less than 20 years of marriage, and a high end of more than 20 years of marriage. A payor married less than 20 years will pay alimony of .015 X years of marriage X the difference between the monthly gross incomes of the parties. A payor married more than 20 years will pay .020 X the years of marriage X the difference between the monthly gross incomes of the parties.
Under the proposed bill, the calculation for determining the length of alimony uses the same low end/high end of 20 years, with the low end being .25 X the years of marriage, and high end at .75 X the years of marriage. Also, the bill mandates that child support and alimony combined cannot amount to more than 55 percent of a payor’s net income.
This has some opponents of the bill concerned as the calculations are likely to mean lower alimony amounts across the board. But setting such guidelines is the direction numerous states are headed, according to Brett Turner a senior family law attorney for the National Legal Research Group, a Virginia-based company that specializes in providing legal research for lawyers and law firms.
“It looks to me like a pretty standard move,” Turner said of Florida’s effort toward guidelines. “Child support guidelines have been very successful in various courts. Whether it was plus or minus for someone it sort of established a standard result. It seems likely alimony guidelines can be just as successful.”
But the guidelines and other provisions in the bill greatly scare alimony recipients who would lose everything without their payments, according to Jan Killilea, who has gained national media attention as a member of the First Wives Advocacy Group.
Killilea, of Boca Raton, was a scathing critic of a similar bill that Gov. Scott vetoed in 2013 and remains against this year’s incarnation. Scott vetoed the bill saying he was against a provision that made it retroactive to cover all existing alimony awards. Killilea believes that while on its face the “retroactive clause” has been removed, if the new bill passes old judgments will still be subject to the new bill as it allows for new avenues for modifications. And while the bill only applies to cases already open or filed after the bill’s proposed enactment date of Oct. 1, if a modification to an existing award is approved, the revised award will be subject to the new bill’s parameters. The bill, however, will not be allowed to be the sole criteria for seeking a modification.
Under the current law, modifications of alimony judgments are very hard to obtain. The new bill would allow for new avenues to file for a modification such as if either a payor or a payee sees an increase or decrease of at least 10 percent in pay. Killilea sees that as outrageous saying a 10 percent increase for a payee making $9.00, for example, the spike in pay is paltry.
Killilea said she is resigned to the fact that the bill will pass the legislature but is still fighting saying the approach of taking a “machete” to the existing law without even an impact study on alimony recipients is unfair.
“Gov. Scott is to be credited for vetoing the last bill, and I just hope he doesn’t just blindly sign this one,” she said.
The go to headline when it comes to the bill has been that it will put an end to permanent alimony, which has been the standard under the current Florida law for marriages longer than 17 years for some time. But permanent alimony is still possible under the new bill, though it will likely be rare. Judges will still have the discretion to deviate from guidelines under certain extenuating circumstances such as age, health, and income levels of parties. But the bill mandates that judges spell out in writing why they deviated from the guidelines.
Turner argues that is the way to go as he believes permanent alimony will mostly be a thing of the past, but the need still exists in some circumstances, especially for older men and women who gave up decades of their lives at the insistence of their former spouse to take care of the household.
“I think permanent alimony is extremely fair under those circumstances if there is say 30 or 40 years of marriage. But I also think there are fewer and fewer of those marriages,” Turner said.
Some former opponents of bill, such as the Florida Bar Family Law Section, have come to support most of the bill and especially its alimony guidelines. Attorney Tom Sasser represented the section at the Senate committee hearing Tuesday and said while the guidelines will provide ranges for judges to make “reasonable decisions” they will still have the safety valve of being able to address extreme situations of hardship for either party.
While some opponents like Killilea say the bill will create a rush on the courts for modifications, advocates of the bill also say with guidelines in place more cases will be settled before litigation as people looking at divorce will have a better idea of where a judge will come down.
As debate remains heated, attorneys outside the political fray are already looking at what the bill could mean for their clients. Ayo & Iken attorney Cheri Hobbs said waiting on the outcome of the proposed legislation has been interesting for her and her clients, who fall on both sides of the bill if it passes: some would pay less under the new guidelines, and some clients would not get as big an award, she said.
“I’m certainly making my clients aware of the bill and what it might mean. Right now you are at the mercy of the judge and you are getting alimony all over the place and it’s not fair,” Hobbs said. “It feels like the goal of the bill is to be realistic. Whether you like it or not at least you know. It gives the attorneys some clarity they can bring to their clients.”
Appropriations Chairman Sen. Tom Lee, R-Brandon, before voting for the bill Tuesday, made this commentary about alimony cases in the state.
“If had one hope and dream for the legislation if it passed it would be that there will be a particular correlation between the facts and the outcome and less of a correlation between a judge’s particular view of the world and the outcome. Because that is what is happening in Florida today.”
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
Now ,015 – as April 14th, 2015
The upper end is 0.020 X the number of years of marriage X the difference between the monthly gross incomes of the parties.
Now .020 as of April 14th, 2015
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.
Sleeper Provision on Child Custody:
The Senate version of the alimony bill changes the starting point for child custody decisions to a 50/50 custody plan. It remains to be seen if this language survives.