Florida Alimony Statute brings sweeping changes!
Sweeping Florida Family Law reforms have deleted permanent alimony and codified a framework for how the other forms of alimony should be awarded, effectively further reducing judicial discretion in an effort to have a more standardized approach to divorce. Over are the days (theoretically) of a spouse in one circuit getting a windfall while a spouse in another circuit left without means, solely based on which judge presided. Here are 5 facts you need to know about the changes:
- The Changes DO NOT EFFECT Current Florida Alimony Orders in Closed Cases. If you are in a pending case where alimony has been awarded temporarily, this new set of laws applies. And it applies to future cases. But any cases that have already been to final judgment (and presumably the time for appeal has passed), will not be changed due to this deletion of permanent alimony. That said, the standards for modification including the definition of a supportive relationship or the concepts for retirement set forth therein, likely will apply to any future modifications regardless of when the Final Order was entered.
- Florida Alimony is not Gone! Permanent Alimony is gone. Temporary Alimony (support while a divorce case is pending) has officially been added to the types of alimony the Court can Order pursuant to the Florida alimony statute. Other types of alimony that still exists include bridge-the-gap alimony, rehabilitative alimony, and durational alimony. Each type can be ordered to be paid in full in lump sum, or in payments over time. A Court is not limited to picking one type of alimony and could award all of the kinds set forth above in one single case. The Legal Standard for whether alimony should be awarded is based on the party asking for it proving that they have a need and the other party has the ability to pay.
- Alimony Statute Suggests Duration Based on Length of Marriage. The new Florida alimony statute suggests a cap on the length of time alimony can be Ordered, but leaves room for the judge to award more based on specific findings of fact. Generally speaking, a short-term marriage (now defined as less than 10 years) will not include an alimony award that exceeds half the marriage. A mid-range marriage (one between 10 and 20 years) will generally not include an alimony award that exceeds 60% of the marriage. And a long-term marriage (a marriage of 20 years or more) will not see an award of more than 75 percent of the length of the marriage, absent special circumstances. It doesn’t mean that a judge has to award alimony for the full timeframes set forth, those are caps. How retirement is to be factored in by the judge is also a new wrinkle that codifies the expectation that a paying spouse should be able to stop working at some point.
- Alimony Statute Further Defines/Caps Need and Ability to Pay (As to Amount). The Florida alimony statute still requires a judge to review the payee’s need and the payor’s abilty to pay, based on the statutory factors we have all come to know for many, many years. However, the new Florida alimony statute requires the Court to review the difference between the parties’ net incomes and to award up to 35% of the difference, or the payee’s reasonable needs proven (whichever amount is less!).
- Courts Must Include Written FIndings of Fact in Alimony Awards. Most appeals in Florida Family Law require the appellant to prove that the judge abused his or her discretion in making the ruling the way they did. This is a pretty hard standard to win on, but not impossible. Up until now, judges had wide discretion in making Florida Alimony awards. Now, the judges must use the framework listed in the new Florida alimony statute. Further, the courts must detail their findings in writing so that an appellate court can determine what they were thinking and have a better understanding of whether the trial court abused its discretion. As a reuslt, it is likely that if an alimony award does not comply with the framework set forth in the new Florida alimony statue, it will be overturned unless the written findings document special circumstances that require something more than the new Florida alimony statute provides.
It is important to have counsel on your side that understands the new Florida alimony statute. If you are a spouse who is in need of alimony, it is importatant to review the new Florida alimony statute to determine what amount conforms with your need, based on the modifications. It may be necessary to litigate whether your case falls into the special circumstances and to provide language for a judge to include in their written findings. On the other hand, if you are a potential payor, you may want counsel to make sure that the limits set by the legislature do not exceed the need as set forth in the original set of factors which are still contained within the new Florida alimony statute.
There are many arguments for and against limiting judicial discretion. Some say that it does not allow judges to take into consideration all of the things going on in an individual case that make it different from every other case. Others say it is important to limit discretion so that awards are more universal around the state, so that ultimately people can know what to expect and presumably work it out amongst themselves rather than spend their family fortunes on attorneys. In any event, it is a brand new law that is just now reaching the trial courts. In the next few weeks, the law will be put to test and likely appealed. The first question will probably be whether the cap on judicial discretion is an unconstitutional breach of the separation of powers in both the Florida and Federal Constitutions. If the law survives this analysis, then appeals thereafter will likely be on a case by case basis on whether the findings of fact were appropriate under the circumstances.
If you or someone you know is contemplating divorce, contact us for a consultation and review of how this new law applies to you.