Even though the 2015 alimony bill died as the legislative session ended in chaos, alimony reform efforts continue in Florida. The law is expected to change and one of the major changes is that “permanent periodic alimony” currently provided for under the statute will no longer be available.
I will summarize the changes we may expect to see during the upcoming legislative sessions and compare the changes to the current version of the alimony statute.
The reform efforts seek to encourage the court to determine income at least at minimum wage. Income would includes personal use of business expenditures, worker’s comp, and disability. Efforts seek to exclude gains or income within retirement accounts if the money is not taken out (prior to retirement age). “Income” may even be defined as “potential income” which means the amount that could be earned with best efforts.
There is no exact definition of income in the current statute which refers to “earning capacity.” The courts use the concept of “earning capacity” 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. The concept of “imputed income” 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.
Alimony is supposed to be used to pay regular monthly expenses. There is no savings component to alimony. Alimony is based on need. If the recipient spouse is working but marginally or refuses to work at all they may be considered “underemployed” or “voluntarily unemployed.” The concept of “underemployment” is highly contested because it tends to minimize exposure to adverse alimony awards for the paying spouse. “Underemployment” 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.
New proposed guidelines determine the upper and lower end for an alimony award. The lower end is a decimal approximately 0.0125 times the number of years of marriage times the difference between the monthly gross incomes of the parties. The upper end is a decimal around 0.020 times the number of years of marriage times the difference between the monthly gross incomes of the parties. The resulting amounts appear to be significantly lower than current, average alimony awards. Under the current version of the law, there are no guidelines and the amount of the alimony award it strictly up to the Judge’s discretion. Under the current version of the statute, the same case tried by 10 different judges is very likely to have 10 different results. The proposed guidelines are intended to bring uniformity to alimony awards case to case, county to county, statewide.
Alimony reform is likely to cap the duration of alimony awards. New proposed guidelines determine the upper and lower end for the length of an alimony award. The lower end is a decimal approximately 0.25 times the years of marriage. The upper end is a decimal around 0.75 time the years of marriage. Marriages under 2 years are most likely not going to produce significant alimony issues. This provision all but eliminates permanent alimony in Florida and replaces permanent alimony with more definite, shorter term awards.
Under the current version of the statute, a marriage of less than seven years duration is considered a short term marriage. A marriage of seven to less than 17 years is a marriage of moderate duration. A marriage of 17 years or more is a long term marriage after which there is a presumption in favor of permanent alimony. Judges will not usually award permanent alimony after a short term marriage but could make a permanent alimony award in a marriage of moderate duration. Under the current (2010) version, alimony awards and as well as the duration of alimony awards is left entirely to the discretion of the Judge however durational alimony awards may not exceed the duration of the marriage and bridge-the-gap alimony is capped at two years.
New proposed alimony law in Florida specifically states that the standard of living for two households will be lower than a single-married household, and that alimony awards should consider that fact. On the other hand, the goal of the current statute is for the recipient spouse to maintain the same standard of living as the parties enjoyed during the marriage. Complaints with the current law is that it is impractical to consider placing a party in the marital standard of living when the parties are not married and a marital standard of living presupposes the efforts of both parties one way or another. The new bill pegs the post-divorce standard of living at a point lower than the marital standard of living.
The new alimony law in Florida seeks to require the Judge to consider whether a party could become better able to support themselves and thus reduce the need for alimony through education or training opportunities. The current law has no requirement for a spouse to better themselves over time.
The changes seek to cap the total amount the court can award as a percentage of the paying spouse’s net income. Total alimony and child support payment cannot exceed more than 55% of the payor’s net income under the proposed law. Under the current alimony law in Florida there is no maximum amount of alimony a Judge may award.
Alimony reform efforts seek to simply the means by which a party who is paying alimony may return to court for modification of the award. Reform efforts seek to expand and speed-up the circumstances by which to seek modification of an alimony award and proposes language that in the event the recipient earns more income than an imputed amount at the time of entry of the final judgment, then the paying spouse can immediately file for modification. It is difficult to modify alimony awards under current Florida alimony law.
Under most circumstances the new alimony law in Florida contemplates that the spouse who is paying alimony may advance in their career or get pay increases without being subject to an upward modification in the amount and/or duration of the alimony award. Under the current alimony law, an increase in the spouse’s income who is ordered to pay alimony may warrant an increase in the alimony amount. The new alimony law proposes to make it significantly easier to prove “cohabitation” as a reason to modify or terminate alimony. The new alimony law in Florida also removes the requirement that cohabitation necessarily requires living in the same place at the time of the modification case. Under the current law it is very difficult to prove that the recipient spouse is involved in a live-in, supportive relationship. The current cohabitation statute in Florida 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 is more definite and easier to establish a basis for payment.
The enhancement in the lifestyle of the payor spouse through re-marriage can be considered by the court under the current alimony law in Florida. Alimony reform efforts seek to eliminate income earned by new or subsequent spouses from consideration. The financial resources a new spouse brings are not relevant for alimony modifications. The new spouse’s financial information should not even be considered in a new case.
Alimony reform in Florida proposes to make it easier to retire and at that time to terminate or reduce alimony. Under the current alimony law in Florida, the right to retire is inconsistent and varies dramatically from judge to judge.
Another major change in the alimony law in Florida is the proposal to require the party who 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. The current law requires the spouse with more money to pay or offset the cost of attorneys for both sides.
For additional information or other questions about alimony, call (904) 360-6100 or submit a case evaluation form.