Landmark Alimony Reforms Proposed by Florida Legislator

 On January 17, 2013 Representative Ritch Workman, a Republican serving District 52 in Melbourne, Florida introduced the latest version of an alimony reform bill which, if enacted, would represent the most sweeping changes to Florida divorce law in nearly four (4) decades.

Currently, Florida law provides for five (5) types of post-divorce alimony: (a.) bridge-the-gap alimony; (b.) rehabilitative alimony; (c.) durational alimony; (d.) lump sum alimony; and (e.) permanent, periodic alimony. There is no bright line rule for which type of alimony is appropriate in a given case but there has been a presumption for/against permanent alimony based upon the length of the marriage. More importantly, there has been no statutory formula used to calculate the amount of alimony that should be awarded. Instead, the legislature has provided the courts with guidance in the form of a list of factors to consider in each case.

HB-23 provides for a comprehensive overhaul of current law by: (a.) eliminating permanent alimony altogether; (b.) eliminating standard of living as a factor in determining the amount of alimony; (c.) creating a formula for determining the amount of alimony that will be paid under the remaining types; (d.) providing for the automatic termination of alimony, in most cases, upon the oblige reaching full Social Security retirement age; and; (e.) limiting durational alimony to a period which is half the length of the total marriage[1].

(a.) Permanent alimony: Under the current law, the impecunious spouse (i.e. not the primary wage earner) in a long-term marriage is presumed to be entitled to permanent, periodic alimony. This alimony continues on a monthly basis until either party dies, the payee remarries or a substantial and material change in circumstances occurs. Under the new legislation, this permanent support would cease to exist.

(b.) Standard of Living: Under the current law, the Courts are required to consider ten (10) factors in order to determine the appropriate amount of an alimony award. The standard of living established during the marriage is one of these factors but Courts have traditionally placed a great deal of weight on this lifestyle analysis. In fact, the emphasis on the standard of living factor became so great that it prompted to the Fourth District Court of Appeal to remind trial courts that standard of living is not a Super Factor which outweighs the other statutory considerations. Donoff v. Donoff.

The proposed legislation specifically deletes standard of living as a factor in determining the amount of alimony. In fact, it contains a rebuttable presumption that both parties will have a lower standard of living post-divorce.

(c.)  Formula for Determining Alimony Range: The proposed legislation defines a short-term marriage as less than 10 years and contains a presumption against alimony. A mid-term marriage is defined as between 10 and 20 years and there is no presumption for or against alimony. A long-term marriage is more than 20 years and an entitlement to alimony is presumed. Beyond that, the following formula is written into the statute:

Short-term:  Alimony may not exceed the lesser of 50% of the difference between the parties’ net income or 20% of the payor’s net monthly income.

Mid-term:  Alimony shall not exceed the lesser of 50% of the difference between the parties’ net income or

Long-term: Alimony shall not exceed the lesser of 50% of the difference between the parties’ net income or

(d.) Automatic Termination upon Social Security Age: Currently, an obligor must establish a substantial change in circumstances before he can modify or terminate his alimony obligation. Reaching retirement age (and actually retiring) can be considered a sufficient change but it is not necessarily a guarantee that alimony will end and, in any case, it still requires a petition. The new law terminates alimony when the payee reaches Social Security retirement age unless he or she can prove by clear and convincing evidence that the need and ability still exist. In that case, alimony shall continue subject to the limitations on the length of a durational alimony award.

(e.) Limitation of Duration: Under the proposed legislation, an award of durational alimony cannot extend beyond 50% of the length of the marriage unless the payee can establish by clear and convincing evidence that additional time is needed.

Perhaps the most interesting thing about HB-231 is that it is intended to apply retroactively to alimony awards in cases that have long since been closed. Section 6 states that “Such amendments may serve as a basis to modify awards entered before July 1, 2013, or as a basis to change amounts or duration of awards existing before July 1, 2013.” In order to prevent a deluge of modification proceedings, this section provides that: (1.) obligors who were married less than 8 years can proceed with a modification immediately; (2.) obligors who were married less than 15 years may proceed with a modification after July 1, 2014; and (3.) obligors who were married more than 15 years must wait until July 1, 2015 to bring a modification case based upon this new law.

The members of the Ferraro Law Group, PL has been representing clients in Stuart, Florida and the surrounding areas for nearly forty years. We provide services in divorce, general family law and estate litigation disputes. We also assist divorce attorneys throughout the State of Florida with issues arising from the distribution of retirement plans, including the drafting of Qualified Domestic Relations Orders (QDROs). To learn more about our practice, please visit us at www.ferrarolawgroup.com.