Transcript
Howard Iken:
So, good afternoon everyone.
Jeana Vogel:
Good afternoon.
Howard Ellzey:
Good afternoon.
Trending Issues
Howard Iken:
So, we’re here with several Ayo & Iken partners, and we’re going to talk about briefly the new alimony law that was just signed by the governor and has just taken effect. And we’ll talk about some of the major points. And with us today, we have attorney Jeana Vogel, we have Howard Ellzey, we have Jason Ponder, and everyone here is a partner with the firm of Ayo & Iken. And we’re going to give some opinions and maybe some information on the changes that are to come or that are implemented right now. So, let me go ahead and throw the first question to our very knowledgeable poll of people. Is alimony dead in general? Can people still get alimony? Is it still an issue? Jeana?
Jeana Vogel:
Oh, it’s most certainly still an issue. There are just changes in the application and the only thing dead supposedly is lifetime, but it seems there’s a way around that in the statute as well.
Howard Iken:
All right, Howard, what’s your take on that?
Howard Ellzey:
I think the statute finally addresses things that have been developing in case law for a number of years, which I think some of us as attorneys have relied on anyway. I know there’s some discretion with the judges sometimes, even though we have these statutory proscriptions that the judge still has some discretion within which to make those decisions. And we’ve been running largely in case law. So it’s good to see some of these things codified.
Howard Iken:
Jason, does this mean that no one really needs alimony anymore? Is that why this law was passed?
Jason Ponder:
Not at all, but Florida’s one of the very few states that still had, up until recently, permanent alimony. So what it’s trying to do is address, I guess, issues across the board that, again, as Mr. Ellzey said, we’ve experienced in case law. We have had some direction, but now this codifies that direction and allows us to move forward with arguments that are sound, based upon a statute that we can point to and address.
Howard Iken:
All right. Howard, let’s just talk about the 9,000-pound gorilla in the kitchen right now, where we’re cooking up alimony laws. Is permanent alimony really needed? What’s your take on that? Did we do away with something that everyone absolutely needed?
Howard Ellzey:
Well, I mean, I could come up with an argument, depending on which client I’ve got, whether permanent alimony would be needed or not. But I think ultimately when it comes down to it, you’re always going to find some situation where, especially when you’re talking about retirement, that it wouldn’t really be reasonable to expect somebody to have a lifetime entitlement to alimony, especially when you start comparing the payer’s ability to pay and even survive on their own. I know there’s an old Jerry Reeds song from the, I don’t know, back in the ’70s, where he talks about working two jobs and eating baloney just to be able to pay his alimony.
Howard Iken:
We’ll ask you to hum a few bars of that a little later, maybe after we’re off of the video. All right. So, Jason, are there adequate substitutes right now, now that permanent alimony’s gone? Can a court still take care of people who absolutely need alimony?
Jason Ponder:
Absolutely. And I think one of the most important things that I’ve read into this is it still allows judicial discretion. You just have to quantify it with specific findings. So, I do believe that there are ways to continue this, make sure that people are taken care of, without letting it be a lifetime sentence for the person that’s paying it.
Howard Iken:
Jeana, does this change favor men or women, or does it matter?
Jeana Vogel:
I personally don’t think it matters. I’ve seen a lot of cases where if permanent alimony does come into play, it’s usually under one of the exceptions that will still qualify for permanent alimony, or it’s based on a lifestyle and at that point, those are exceptional cases. So it’s taken lifetime alimony from being the presumption after what’s considered a long-term marriage, previously was 17 years and now 20 plus years, but it’s taken it as a presumption and just moved it to the exception. And I really feel like those that qualified for the lifetime alimony, and those that could actually go lifetime beyond the changes of retirement, which qualified for modification, they really were exceptional anyways. So I think it just took what we were dealing with and placed it into more of a norm category and it gave us a formula and things more to focus on, which we didn’t-
Howard Iken:
All right. Excuse me. That sounds more like a lawyer’s answer. Everyone knows that women are the main recipients of alimony, the majority, and men are the main payers of alimony. So, how could it not advantage one sex or another? How is that even possible?
Jason Ponder:
I absolutely disagree. I’ve had many cases where it’s been the other way around. Where there has been the male that’s been in the situation where alimony is required and the female, or the woman, has been the primary wage earner. So I disagree completely with that statement.
Howard Iken:
So you guys think things have evened out over the years between men and women? Come on.
Jeana Vogel:
I don’t think things have evened out, but I think-
Howard Iken:
Give me the blunt truth of this.
Jeana Vogel:
I don’t think things have evened out, but what I think, based on the length and of times for how they classified alimony under this statute saying that if it’s short term, zero to 10 years, it’s only 50%, and then 10 to 20 years it’s, what is it? 60%. And then after 20 years it’s 75%. I think this timeframe and the length of alimony, also putting in the needs up to 35%, has also gained a benefit because our judges had such discretion. And if you had enough assets, and impacts, and stuff, and they removed things such as tax impact ability of any other type of income, which you can then consider, “Okay, what is your dividends from your investment accounts?”
Howard Iken:
All right. So, let me ask you this.
Jeana Vogel:
So I think the formula evens it out.
Howard Ellzey:
But what they did leave in though, that I thought was interesting by comparison, is that they also look at the payer’s other assets from which they would be able to pay alimony. And so if someone, let’s say for example post-divorce, someone has acquired some substantial assets by wise investing, then if somebody’s going to come back later and seek a modification and then try to use this statutory model as some of the guidelines for doing the modification, they’re going to want to go and look and say, “Oh, look at these other assets that he has.” So we need to be on our toes a little bit to understand that it may be possible that those assets were not a product of the marriage.
I’m also thinking, I’m going to pile on a little bit here to the previous question, that while women have over how many numbers of years been more equalized in the workplace environment, it seems like the alimony statute has lagged behind, or at least the traditional societal models of spouses seeking alimony has been more along what Mr. Iken was talking about, with it being usually more the women that are receiving alimony. But I have had some cases lately where I’ve seen the husband, in my view, unfairly be the recipient of a permanent alimony award. And it seems like an uphill climb sometimes to try to get that permanent alimony modified. So, hopefully, this will change the overall feel for the entitlement to alimony given the party’s financial situation.
Howard Iken:
All right, so quick round. Jeana, is this change good for women, good for men, good for everyone, or bad for everyone? Quick opinion.
Jeana Vogel:
I do think women will suffer largest from this change, but in general, for the law, for application, I think it’s good for everyone that we have a formula and we have standards moving forward.
Howard Iken:
Jason, your take on this?
Jason Ponder:
I think it’s good for men.
Howard Iken:
Okay. Howard?
Howard Ellzey:
I’ve got a client right now that I think it’s going to keep him from suffering unjustly because of the expectation of a potential receiving spouse believing that she’s entitled to permanent alimony just because she wants it.
Howard Iken:
All right. Let’s move on a bit and talk about another huge issue with people getting or receiving alimony, the whole subject of retirement. So Jeana, was there a change, real briefly, was there a change in people’s right to retire?
Jeana Vogel:
Well, the statute codified and made it standard that you have the ability to terminate or modify your alimony upon retirement. You can apply six months in advance of your anticipated retirement. However, in effect, we already were kind of applying those standards through case law application. It just became standard through statute.
Howard Iken:
Jason, we’ll keep mo-
Howard Ellzey:
I’m sorry. I’ve got a little bit of a problem with that six months in advance because we all know that a court may not order prospective relief. So I do have a case right now where a party was retiring from a post office and he goes, “Oh, I’m going to retire in December.” And then we turned around, here it is February, and the guy still hadn’t submitted his retirement paperwork. Which, with the Office of Personnel Management, requires a lot of bureaucratic delays. And then, so it’s like what are we supposed to base our alimony figures on for us to go to mediation to figure out what’s going to be reasonable? And I find that a little bit, I’m not really comfortable with that yet.
Howard Iken:
Jason, is this change making it easier for people to retire?
Jason Ponder:
Making it easier for people to retire? I believe it allows people on the avenue to move towards that. I don’t know if it makes it easier because you do have to be the standard age for retirement. I do believe the court can still use retiring early as a factor against you. So, yes and no, actually.
Howard Iken:
I believe the courts and judges will twist this change however they want it to twist. What do you think about that statement, Jeana?
Jeana Vogel:
I feel like we’ve been applying the retirement issue through case law for quite some time. I think the burden of proof now, per the statute, meaning preponderance of the evidence, makes the burden a little higher than maybe in the circumstance that Mr. Ellzey was talking about. Because if I go in there and I have someone saying, “Hey, I’m going to retire,” and I can show, “Well, the post office requires you put in the notification six months, where’s your notification?” Clearly, your end date shouldn’t be this date. I think that’s part of preponderance. And I don’t think we had the standard of proof before. So I do think maybe that it doesn’t make it easier or harder. I just think it makes it more truthful when we’re putting forth the case in the timeframe needed.
Howard Iken:
All right. Something I think we’re all going to disagree on, but that’s okay. I read the following language on when the change is in effect, the approximate language in the new law is, the court shall apply this section to all initial petitions for dissolution of marriage, or support, pending or filed on or after July 1st, 2023. Now, I personally read that to mean judgments that went in place a year ago, two years ago, 10 years ago, will not be affected, and there are very few new rights under this new law, mainly with respect to permanent alimony. What do you think, Jeana?
Jeana Vogel:
I think that’s going to be left up to how judges want to play with this. I personally believe it doesn’t negate the ability for judges to apply the terms of this with regards to reasonableness, if modification terms are met, because you have to show still a substantial change in circumstance, you have to meet the requirements. But after those requirements are met-
Howard Iken:
So, do you think someone with a 10-year-old judgment can come in with this law printed, waving it in hand, showing it to a judge, is it going to make a difference for someone who got their judgment 10 years ago?
Jeana Vogel:
If they’re seeking a modification for retirement or for a supported relationship? Yes, completely.
Howard Iken:
How about if they’re paying permanent alimony and they come in and say to the judge, “Good news, permanent alimony is eliminated. What can you do for me?”
Jeana Vogel:
I don’t see that you can modify the duration of permanent alimony under this or that it authorizes it, but I’m interested to see how the judges play with it because I do think they’re going to lean to wanting to do it. And I think that’s going to be an influx in our appellate cases and it’s going to definitely go up to appellate and Supreme Court on how it’s handled.
Howard Ellzey:
I think-
Howard Iken:
And Jason-
Howard Ellzey:
I’m sorry.
Howard Iken:
Oh. Go ahead, Howard. Go ahead.
Howard Ellzey:
I think it might be a little bit telling that the legislature specifically did not provide that retroactive application, and how can they not see that this is going to create, the very issue that we’re talking about. Fortunately, if we look at this in the sense that the statute does codify a lot of case law, our only option is then to be able to look at the case law that has existed and use the statute, maybe as persuasive even, though it may not be mandatory but certainly it can be persuasive, in trying to explain to the judge how they should rule.
Howard Iken:
Well, when a judge rules, Howard, is that something where they all get on a conference call together and suddenly the outlook will be the same all over the state of Florida?
Howard Ellzey:
Well, I guess before we get there, maybe we can try to mediate with our opposing counsel and clients and try to figure out what our expectations are. And then, I think we all know this too, different judges have different views on what alimony should be permanent or whatnot. And I think you may have some tendency if you’ve got some judges who are vested, shall we say, in their older judgment, where they have awarded the permanent alimony, maybe they’re going to be a little less likely to concede that maybe permanent alimony would not be appropriate in that situation. Or you may have some other more progressive judges that are going to have less invested in the idea that permanent alimony should exist.
Howard Iken:
Are there some judges who have paid alimony themselves or received alimony and that colors their opinion?
Howard Ellzey:
Yeah, it could be. Or even some attorneys let their own personal experiences influence their enthusiasm for the arguments.
Howard Iken:
So, Jason, same question. Someone with a judgment 10 years ago comes into court waving the new law, what happens?
Jason Ponder:
I think they’re going to have a rough time. Yes, there’s no retroactive language in there prohibiting it, but I believe the intent and the way the statute is drafted there are only two situations, I believe right now, where modification or termination is going to occur. Supportive relationship and retirement at this point.
Howard Iken:
All right. So, what I’m reading from all of you, and I tend to agree with it, we don’t know exactly what’s going to happen. You would think a new law specifies to the letter what’s going to happen, but it looks like different judges will interpret it differently, and we’re all going to find out over the next few years what this change really means. Real quick, Howard, do you agree or disagree?
Howard Ellzey:
Yeah. One thing I was thinking about is how long it’s taken the legislature to pass this alimony. And some of the issues that we have this way or that way, what the specifics are, maybe those were discussed in the development of the bill before it came to a vote and maybe there were some omissions and concessions that had to be made in order to get it to pass.
Howard Iken:
Okay. Jeana, what’s your take?
Jeana Vogel:
I agree with Mr. Ellzey. I think a large part of the contentions in the previously proposed bills was the retroactive impact, and I do believe that they purposely left that out to probably get the promotion of the Family Law department this time. If you look at any judge’s ability to modify alimony, you have to point to some type of authority. Right now, as you pointed out, Mr. Iken, there’s no authority to say on a modification, let’s terminate the duration of a lifetime, whether it’s a supportive relationship or retirement. So I think we’re going to meet a lot of walls with regards to anyone’s effort for application on modifications, but knowing attorneys and knowing judges, I see it still happening.
Howard Iken:
All right. Jason, bring it home. What do you think?
Jason Ponder:
I’m going to take actually both of those responses and agree with both of them. This is what we do, guys. We’re going to find a way, someone that’s going to find a way to get around this, or the door’s going to get shut through case law. So, these next three years are going to be very telling. And again, it’s going to be up to the legal community to keep up with this to see how this evolves. And again, if it needs to evolve again, not sure. It took so long to get here, there still may be issues.
Howard Iken:
All right. And I tend to agree. In my experience, judges slice and dice the law, and lawyers point to words and point out the weaknesses and how they mean different things. And I think we’ve got a very interesting two-year period coming up where this is going to be tested, argued, and different judges will give their opinion, what it really means. All right. Well, I appreciate everyone’s opinion today. We’re going to wrap it up. Jeana, Howard, and Jason, thank you for your very expert opinion and hopefully, our viewers will find this informative. Thank you. Have a good morning.
Jason Ponder:
Thank you, Mr. Iken.
Jeana Vogel:
Thank you.
Howard Ellzey:
Thanks for having us.