Text of Florida Senate Bill 748 – Proposed Changes to Alimony Laws in Florida

Yesterday I wrote an update on changes that the Florida Senate is proposing to make to current alimony laws.  Below is the text of the current version of Senate Bill 748 (added text is underlined, while deleted text is stricken):

An act relating to dissolution of marriage; amending s. 61.08, F.S.; revising the factors to be considered for alimony awards, including adultery; requiring a court to make certain written findings concerning alimony; providing that if the court orders a party to provide security to protect an award of alimony, the court may so order only upon a showing of special circumstances; requiring that the court make specific evidentiary findings regarding the availability, cost, and financial impact on the obligated party to support the award of security; revising provisions for an award of durational alimony; redesignating permanent alimony as long-term alimony and revising provisions relating to its award; amending s. 61.14, F.S.; prohibiting a court from reserving jurisdiction to reinstate an alimony award if a supportive relationship ends; providing that a modification or termination of an alimony award is retroactive to the date of filing; requiring the court to consider certain specified factors in determining if the obligor’s retirement is reasonable; amending s. 61.19, F.S.; prohibiting the court from granting a final dissolution of marriage with a reservation of jurisdiction during the first 180 days after the date of service of the original petition for dissolution of marriage to subsequently determine all other substantive issues except in exceptional circumstances; authorizing the court to grant a final dissolution of marriage with a reservation of jurisdiction to subsequently determine all other substantive issues only if the court enters such other temporary orders as are necessary to protect the interests of the parties and their children; providing circumstances in which the court is not required to enter a temporary order; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Section 61.08, Florida Statutes, is amended to read:

61.08 Alimony.—

(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be bridge the-gap, rehabilitative, durational, or long-termpermanent in nature or any combination of these forms of alimony where appropriate. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded to the extent that the adultery caused a significant depletion in the marital assets or caused a significant reduction in the income of a party. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.

(2) In determining whether to award alimony or maintenance, the court shall first make, in writing, a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider and make written findings regarding all relevant factors, including, butnot limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to any minor children the partiesthey have in common.

(h) The tax treatment and consequences to both parties of any alimony award, which may include the designation of all or aportion of the payment as nontaxable to the recipient and nondeductible to the payorincluding the designation of all or aportion of the payment as a nontaxable, nondeductible payment.

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) The net income available to each party after the application of the alimony award.

(k)(j) Any other factor necessary to do equity and justice between the parties, if that factor is specifically identified in the award along with findings of fact justifying the application of the factor.

(3) To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose in an amount adequate to secure the alimony award. Such security may be awarded only upon a showing of special circumstances. If the court finds special circumstances and awards such security, the court shall make specific evidentiary findings regarding the availability, cost,and financial impact on the obligated party. Any security may be modifiable if the underlying alimony award is modified.

(4) For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years orgreater but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.

(5) Bridge-the-gap alimony may be awarded to assist a party by providing support to allow the party to make a transition from being married to being single. Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short term needs, and the length of an award may not exceed 2 years. An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award of bridge-the-gap alimony shall not be modifiable in amount or duration.

(6)(a) Rehabilitative alimony may be awarded to assist a party in establishing the capacity for self-support through either:

1. The redevelopment of previous skills or credentials; or

2. The acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.

(b) In order to award rehabilitative alimony, there must be a specific and defined rehabilitative plan which shall be included as a part of any order awarding rehabilitative alimony.

(c) An award of rehabilitative alimony may be modified or terminated in accordance with s. 61.14 based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan.

(7) Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a long-termpermanent basis as provided in subsection (8). An award of durational alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances in accordance with s. 61.14. However, The length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.

(8) Long-termPermanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. Long-termPermanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in subsection (2), following a marriage of moderate duration if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set forth in subsection (2), or following a marriage of short duration if there are written findings of exceptional circumstances. In awarding long-termpermanent alimony, the court shall include findingsa finding that no other form of alimony will provide for the needs and necessities of life of the recipient as established during the marriage of the parties and that no other form is fair and reasonable under the circumstances of the parties. An award of long-termpermanent alimony remains payable untilterminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship in accordance with s. 61.14.

(9) The award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.

(10)(a) With respect to any order requiring the payment of alimony entered on or after January 1, 1985, unless theprovisions of paragraph (c) or paragraph (d) appliesapply, the court shall direct in the order that the payments of alimony be made through the appropriate depository as provided in s. 61.181.

(b) With respect to any order requiring the payment of alimony entered before January 1, 1985, upon the subsequent appearance, on or after that date, of one or both parties before the court having jurisdiction for the purpose of modifying or enforcing the order or in any other proceeding related to the order, or upon the application of either party, unless theprovisions of paragraph (c) or paragraph (d) appliesapply, the court shall modify the terms of the order as necessary to direct that payments of alimony be made through the appropriate depository as provided in s. 61.181.

(c) If there is no minor child, alimony payments need not be directed through the depository.

(d)1. If there is a minor child of the parties and both parties so request, the court may order that alimony payments need not be directed through the depository. In this case, the order of support shall provide, or be deemed to provide, that either party may subsequently apply to the depository to require that payments be made through the depository. The court shall provide a copy of the order to the depository.

2. If the provisions of subparagraph 1. appliesapply, either party may subsequently file with the depository an affidavit alleging default or arrearages in payment and stating that the party wishes to initiate participation in the depository program. The party shall provide copies of the affidavit to the court and the other party or parties. Fifteen days after receipt of the affidavit, the depository shall notify all parties that future payments shall be directed to the depository.

3. In IV-D cases, the IV-D agency shall have the same rights as the obligee in requesting that payments be made through the depository.

Section 2. Paragraph (b) of subsection (1) of section 61.14, Florida Statutes, is amended, and subsection (12) is added to that section, to read:

61.14 Enforcement and modification of support, maintenance, or alimony agreements or orders.—

(1)

(b)1. The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists.

2. In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question. The court shall give consideration, without limitation, to circumstances, including, but not limited to, the following, in determining the relationship of an obligee to another person:

a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife,” or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.

b. The period of time that the obligee has resided with the other person in a permanent place of abode.

c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.

d. The extent to which the obligee or the other person has supported the other, in whole or in part.

e. The extent to which the obligee or the other person has performed valuable services for the other.

f. The extent to which the obligee or the other person has performed valuable services for the other’s company or employer.

g. Whether the obligee and the other person have worked together to create or enhance anything of value.

h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.

i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.

j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.

k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.

3. This paragraph does not abrogate the requirement that every marriage in this state be solemnized under a license, does not recognize a common law marriage as valid, and does not recognize a de facto marriage. This paragraph recognizes only that relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph. The existence of a conjugal relationship, though it may be relevant to the nature and extent of the relationship, is not necessary for the application of the provisions of this paragraph.

4. A court terminating an alimony award based on the existence of a supportive relationship may not reserve jurisdiction to later reinstate alimony.

5. A modification or termination of an alimony award may be retroactive to the date of filing of the petition for modification or termination.

(12) The fact that an obligor has reached the normal retirement age for his or her profession, has retired, and has no intent to return to work shall be considered a substantial change in circumstance as a matter of law. In determining whether the obligor’s retirement is reasonable, the court shall consider the following factors of the obligor:

(a) Age.

(b) Health.

(c) Motivation for retirement.

(d) Type of work.

(e) Normal retirement age for that type of work.

Section 3. Section 61.19, Florida Statutes, is amended to read:

61.19 Entry of judgment of dissolution of marriage;, delay period; bifurcation.—

(1) ANo final judgment of dissolution of marriage may not be entered until at least 20 days have elapsed followingfrom the date of filing the original petition for dissolution of marriage,; but the court, on a showing that injustice would result from this delay, may enter a final judgment of dissolution of marriage at an earlier date.

(2) During the first 180 days following the date of service of the original petition for dissolution of marriage, the court may not grant a final dissolution of marriage with a reservation of jurisdiction to subsequently determine all other substantive issues except in exceptional circumstances when it is clearly necessary for the best interests of the parties or their children. The desire of one of the parties to remarry does not justify the use of this process. If more than 180 days have elapsed following the date of service of the original petition for dissolution of marriage, the court may grant a final dissolution of marriage with a reservation of jurisdiction to subsequently determine all other substantive issues only if the court enters such other temporary orders as are necessary to protect the interests of the parties and their children, which shall remain effective until such time as all other issues can be adjudicated by the court. The temporary orders necessary to protect the interests of the children and the parties, which may be entered before the granting of a dissolution of marriage without an adjudication of all substantive issues, may include, but need not be limited to, temporary orders that:

(a) Restrict the sale or disposition of property.

(b) Protect and preserve the marital assets.

(c) Establish support.

(d) Provide for maintenance of health insurance.

(e) Provide for maintenance of life insurance. The court is not required to enter temporary orders to protect the parties and their children if the court enters a final judgment of dissolution of marriage which adjudicates substantially all of the substantive issues between the parties but reserves jurisdiction to address ancillary issues, such as the entry of a qualified domestic relations order or the adjudication of attorney fees and costs.

Section 4. This act shall take effect July 1, 2012.

If you have questions concerning alimony or modification of alimony and you wish to speak with a Tampa Bay Family Law Attorney, set up a consultation with The Law Firm of Adam B. Cordover, P.A., by calling us at (813) 443-0615 or filling out our contact form.