Vast Changes Proposed to Florida Alimony Statute
Permanent Alimony? A thing of the past. Standard of living during the marriage? That factor is so passe. Payments past retirement? Not any more.
These are just a few of the vast changes that will be made to section 61.08 of the Florida Statutes (the “Alimony Statute”) if the current version of House Bill 549 is passed and signed into law. Below you will find the proposed changes to the Alimony Statute (proposed additional language is underlined while proposed deletions are stricken):
61.08 Alimony.—
(1) In a proceeding for dissolution of marriage under s. 61.052(1)(a), the court may grant alimony to either party, which alimony may be bridge-the-gap, rehabilitative, durational, or long-term permanent in nature or any combination of these forms of alimony. In any award of alimony, the court may order periodic payments or payments in lump sum or both, which may not exceed 20 percent of the payor’s monthly net income to include all sources of income averaged over the last 3 years of the marriage. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. 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 all relevant factors, including, but not limited to:
(a)(b) The duration of the marriage.
(b)(c) The age and the physical and emotional condition of each party.
(c)(d) The financial resources of each party, only to include including the nonmarital and the marital assets and liabilities acquired during the marriage distributed to each.
(d)(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.
(e)(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.
(f)(g) The responsibilities each party will have with regard to any minor children they have in common.
(g)(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as taxable to the recipient and deductible to the payor a nontaxable, nondeductible payment.
(h)(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party that were acquired during the marriage.
(3)(a) The court may require the payor to maintain a life insurance policy or bond to protect an award of alimony only if there is a specific factual determination in writing as to whether the recipient has an actual need. An order to secure a life insurance policy or a bond to protect an award of alimony shall be based upon due consideration of the following factors:
1. Age and insurability of the payor.
2. Cost of insurance, including decreasing term-life insurance.
3. Amount of the judgment.
4. Polices carried during the marriage.
5. Duration of the alimony order.
6. Prevailing interest rates at the time of the order.
7. Other obligations of the payor.
(b) An order to protect an alimony award is modifiable upon a substantial change in circumstance in accordance with s. 61.14 and terminates as provided in subsection (9) To the extent necessary to protect an award of alimony, the court may order
(4) For purposes of determining alimony, the court shall recognize 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 but less than 20 17 years, and long-term marriage is a marriage having a duration of 20 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 is shall not be modifiable in accordance with s. 61.14 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 shall 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 for a moderate-term or long-term marriage as defined in subsection (4) 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-term permanent 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 shall may be modified or terminated based upon a substantial change in circumstances or terminated upon the existence of a supportive relationship in accordance with s. 61.14. However, The length of an award of durational alimony may not exceed 50 percent of be modified except under exceptional circumstances and may not exceed the length of the marriage.
(8) Long-term Permanent alimony may be awarded for a
marriage having a duration of 20 years or greater as provided in subsection (4), may not exceed 60 percent of the length of the marriage, and may be extended as needed to continue support of a receiving party who was disabled during the marriage. The Division of Disability Determinations of the Department of Health must authenticate each claim of disability under this subsection. If the payor is certified as disabled by the Division of Disability Determinations of the Department of Health, the award of alimony shall be significantly reduced or terminated 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. Permanent 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 permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. An award of long-term permanent alimony terminates upon the death of either party, or upon the remarriage of the party receiving alimony, or as provided in subsection (9). An award shall 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) Any award of alimony terminates upon the payor attaining the full retirement age when the payor is eligible for the old-age retirement benefit under the federal Old-Age, Survivors, and Disability Insurance Program, 42 U.S.C. s. 416, as amended, as of the date of filing of an action for dissolution of marriage. The payor’s ability to work beyond that age may not be used as a reason to extend alimony.
(10)(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.
(11) In accordance with s. 61.14, if an alimony award has been modified to terminate due to a supportive relationship and that supportive relationship does not produce a marriage, the recipient is not entitled to reinstatement of alimony from the payor.
(12)(10)(a) With respect to any order requiring the payment of alimony entered on or after January 1, 1985, unless the provisions of paragraph (c) or paragraph (d) apply, 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 the provisions of paragraph (c) or paragraph (d) apply, 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. apply, 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.
Keep in mind that these changes are simply in a bill right now, and so they are not yet law. However, I have no doubt that Florida will continue the trend of other states to move away from permanent alimony.
If you have questions regarding alimony and you would like to schedule a consultation with a Florida alimony attorney, contact The Law Firm of Adam B. Cordover, P.A., by calling us at 813-443-0615 or filling out our online form.
Now that Florida, Massachusetts, Colorado and Utah, legislators, due to the changing realities of family life, proposed that permanent current alimony obligations be eliminated in alimony reform legislation, it is now time to propose similar alimony reform legislation for disabled veterans, as Nevada, and West Virginia have recently enacted. You may ask why? Because, according to law……
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INFORMATIONAL COMMENT STATE COURT JUDGES
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38 USC 5301 Nonassignability and exempt status of benefits. “Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law,.. a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
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“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”
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How is it, that state court judges can arbitrarily and capriciously award as alimony, with the mere wave of a hand waive away a portion of a veteran’s VA disability rated compensation, moneys in the form of disability compensation, the disability rights of a veteran, whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same? State court judges, are in reality, playing doctor, without medical license or knowledge .. a practice forbidden, providing penalties by law , and border on medical negligence. All without any input, or approval from the Veterans Administration, overstepping those whose authority it belongs, the dedicated VA medical professionals, in the practice of medicine, re-evaluation, and rehabilitation of the veteran. While at the same time violating federal law, 38 USC 5301, 42 USC 1408, and the 14th Amendment.
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“Clear and substantial” major damage to federal interests occurs when state court judges make lasting decisions, that seriously impact disabled veterans’ rated compensation and complicate Veterans Administration goals, and responsibilities. Upsetting, by overruling VA medical compensation decisions, which involve many hours of work that VA medical professionals have invested in the medical care, control, follow-up, and rehabilitation of disabled veterans. All this happens with VA complicity, when a state court, arbitrarily is allowed to take away a veterans VA disability compensation in third party alimony awards in violation of….. 38 USC 5301. 42 USC § 407 – Assignment of benefits, carries similar language.
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Where is it written, the VA authority, when a state judge can arbitrarily overrule the VA, the VA medical doctors and other medical professionals’ that determine a veterans’ medical rating compensation? His future now without the compensation that was by law assured? Tax payer monies mandated by Congress purposely, as veterans service compensation for injuries received, life altering as they are, now being diverted purposely by state courts to healthy third parties in many cases, in a determined and engaging violation of the law.
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Where is it written? Will the state legislature extend this proposal and eliminate veterans disability compensation from alimony?