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Permanent Alimony Poised to Become a Thing of the Past (and Presumed Equal Time-Sharing the Way of the Future)

The Florida Congress has passed legislation that, if signed into law by Governor Rick Scott, will officially end what has previously been known as “permanent alimony” shifting focus, instead to “durational” support (i.e. support that will last no longer than a certain durational period).

The same bill will also dramatically change the way parents are presumed entitled to enjoy time-sharing with their children, deeming “equal time-sharing by both parents” to be in the best interests of the child.

This article briefly outlines the changes that have been approved by Congress and which will become law on July 1, 2013, provided Governor Scott signs the bill.

CHANGES TO ALIMONY

Aside from taking permanent alimony off the table completely, the approved bill clearly directs judges away from jumping straight to durational support, compelling them to first assess “bridge-the-gap” and “rehabilitative” support options.

The trend away from permanent to durational support is nothing new. In the last 10 years, the idea of putting limits on spousal support terms has been gaining momentum in several states, and has already been made law in more than a handful already. This is, in short, a national trend that appears by all signs to have been inevitable.

The changing demographics of society are frequently cited as the main impetuous for change. For example, whereas 30-50 years ago a woman’s options were limited, greater access to education, increased participation in the work force and sustainable ability to financially contribute to the marital partnership has become both the expectation and the norm. Whereas before being a stay at home parent might have been the only option available to a young wife, in many cases today it is becoming a more a question of parental choice.

Conversely, as women have excelled professionally, many more men have made the choice to be the home-grounded parent, and, in turn, have successfully argued entitlement to alimony support in the event of divorce from their more financially successful wives.

The important thing to understand is that a spouse who will require substantive assistance in the form of support will still have the chance to argue for that right; the difference is that it no longer will be a life time prospect – at least not if the parties choose to litigate their case in court.

It also might dictate what type of dissolution solution you ultimately seek – i.e. litigation, settlement, or collaborative divorce.

Durational Support – The New “Max”

If this law is passed, judges will necessarily limit themselves to considering the duration of the marriage as the capping point for how many years an entitled spouse might be found to claim support.

Under the current law, if you were married 10 years, you would theoretically get no more than 10 years of durational alimony entitlement. Under the new version, however, the duration cap has been cut in half, so that if you were married 10 years, you would theoretically get no more than 5 years of durational alimony entitlement. Longer awards are possible, depending upon the circumstances of the parties, but will require detailed written findings by the court based upon a preponderance of the evidence.

Need, Ability, and Entitlement Presumptions

The judge will also remain bound by other statutory factors as well, such as the requirement that the requesting party prove up “need” and “ability” to pay (now clearly being articulated as the requesting spouse’s “burden”) as well as address the “entitlement” presumption set by the length of the parties’ marriage and the totality of entitlement factors.

The biggest change in this area is that framework of the new legislation has shifted the presumptions, which in turn will have a profound effect on the question of entitlement for a lot of people.

Whereas currently any marriage less than 7 years is considered “short term” and it is presumed neither spouse is entitled to alimony support (though as with most cases in law, there are always exceptions), the new law would change this to any marriage less than 11 years. That means if you are married 11 years or less the presumption is you are not entitled to alimony, your “need” for it or your spouse’s “ability” to pay notwithstanding.

The mid-range marriages where “no presumption of entitlement applies” would shift from 7-17 years to between 11-20 years. This means that if you fall into this range you have to prove up your entitlement to support by arguing evidence of the totality of alimony factors currently articulated in Florida Statutes 61.08(2)(a) – (j), plus your need for the stipend and your spouse’s ability to pay.

Long term marriages, which are the only ones to carry a presumption in favor of alimony entitlement, will shift from those of 17 years or more to marriages that are 20 years or more.

Entitlement Factors

Presuming yours is a marriage that allows for you to argue for entitlement, as a requesting spouse you must address the aforementioned “entitlement factors.” There have been modest edits to this section by the new law, as well, including new factors that require a showing of the needs and necessities of life after the dissolution of marriage and the rebuttable presumption that both parties will have a lower standard of marriage post-dissolution than that which they enjoyed as a united pair. In short, the new changes appear to acknowledge that simple math will yield the conclusion that a lifestyle that was sustainable on one paycheck cannot be expected to live up to that same threshold to support two independent households.

Bar on Claiming Support

The new law will prevent any spouse who is making a net monthly income equal to or greater than the other party’s net income from even asking for support.

Imputation of Income

There are new guidelines on when and how the court can “impute” income to an unemployed spouse (i.e. presume their ability to pay or ability to offset their own need). These guidelines will assess the spouse’s “recent past” income and base the imputations upon demonstrated ability to earn a living, depending upon how long they have been unemployed.

Retirement

There is new language protecting obligor spouses who are retired before filing the petition for dissolution that make it more difficult for a spouse who is seeking support to compel that obligor spouse to provide it. In short, you cannot force a person out of retirement to pay for an alimony award and must show ability to pay from the party’s non-employment related financial resources.

With regard to modification (which is discussed more below), the statute would be amended to specify that an obligor spouse’s “reasonable retirement age” is to be considered a “substantial change of circumstances” for reduction or termination of the support award. There are certain factors related to the retirement that the obligor must speak to, and the legislation allows for the petition to be filed “in anticipation of retirement” so as to be effective upon the actual retirement date.

Amount of Alimony

The new law also puts a more firm cap on the percentage of income that can be diverted from an obligor spouse to contribute to a spouse in need. Whereas presently the determination is largely discretionary (though there are some guidelines), judges will now be obligated to restrict the stipend to no more than 25% of the obligor ex-spouses gross income for short term marriages, no more than 35% of the of the obligor ex-spouses gross income for mid-term marriages, and no more than 38% of the obligor ex-spouses gross income for long term marriages.

Modification of Alimony

There are still provisions for the modification of alimony awards, though here, to, there have been some limitations in the form of the requesting spouse’s burden to prove up certain issues. There has also been some refinement in the “supportive relationship” section that compel the judge to terminate or reduce alimony if there is proof the obligee spouse is engaged in a new relationship that provides for his or her needs (previously, this modification had been merely permissive).

There is also new language added that states that an alimony award cannot be upwardly modified merely because a child has aged out and there is no longer a support obligation upon the obligor spouse. In addition, an obligor spouse’s re-marriage and/or cohabitation are specifically contemplated as not being a basis for an obligee to argue for upward modification of support.

Alimony Alternatives – The Choice of Settlement

It is important to realize that the law binds a judge’s ability to determine support outcomes. Spouses, themselves, will still be permitted to come to alternative alimony arrangements between themselves that exceed the binding of the law, either as a function of a pre-nuptial agreement, a marital settlement agreement, or a collaborative divorce.

In short, permanent alimony will still be viable, but only as a function of a private contract. If you opt to litigate your case, alimony outcomes will necessarily be limited by the law.

Effective date of the Changes

For prospective award cases, the changes above would take effect on July 1, 2013 if signed into law.

How the above changes affect modification of alimony cases depends upon the circumstances and form of judgment that the parties seek to modify. If the law is passed, then

  • Where the Court made the final determination of an alimony award, an obligor can seek to amend any final judgment entered before July 1, 2013, citing to the changes in the law as the “substantial change in circumstances.” It is implicit that he or she will still have to meet the financial burdens for modification otherwise imposed by case law.
    • If your obligation is 15 years or more of alimony, you can file for modification on or after July 1, 2013.
    • If your obligation is 8 years or more (but less than 15) of alimony, you can file for modification on or after July 1, 2014.
    • If your obligation is less than 8 years of alimony, you can file for modification on or after July 1, 2015
  • Where there is a marital settlement agreement, the obligor can seek to amend any order entered before July 1, 2013 that:
    • incorporated a marital settlement agreement for alimony where the duration of the marriage was 15 years or less and the alimony entitlement term exceeds 15 years. Beginning July 1, 2013, such obligors can file for modification, citing to the changes in the law as the “substantial change in circumstances.” (Note: this will be inapplicable to agreements that hold themselves out to be expressly non-modifiable); or,
    • incorporated an marital settlement agreement for alimony, provided the obligor can prove by clear and convincing evidence the agreement was procured by fraud, duress, coercion, or overreaching, was unconscionable and entered without full financial disclosure by the obligee, or that the obligor did not enter it voluntarily. If the obligor can show one of these criteria then he or she can cite to the changes in the law as a “substantial change in circumstances” a request modification of the agreed support (Again, the implication being that he and she will still have to meet the financial burdens for modification otherwise imposed by case law).
      • If your obligation is 15 years or more of alimony, you can file for modification on or after July 1, 2013.
      • If your obligation is 8 years or more (but less than 15) of alimony, you can file for modification on or after July 1, 2014.
      • If your obligation is less than 8 years of alimony, you can file for modification on or after July 1, 2015.

CHANGES TO TIME-SHARING

The same bill also makes dramatic changes to the “public policy” of the state with regard to time-sharing, beefing up the idea that both parents have equal right and entitlement to spend time with the minor child. It would now be considered law that “equal time-sharing with a minor child by both parents is in the best interests of the child” unless the Court finds circumstances to indicate otherwise (i.e. a parent is incarcerated, equal time-sharing is geographically impossible, or one of the two parents does not want 50% time).

This will dramatically impact those jurisdictions which have not yet warmed to the idea of rotating custody. Other jurisdictions will likely experience less impact from this change.

Effective date of the Changes

If the governor signs the legislation into law, then the equal time-sharing changes will apply to any initial final custody order made on or after July 1, 2013. This means if your case is pending prior to that date and no judgment has yet been entered that the new law might apply to your case.

Unlike with alimony, however, this new law is NOT a basis to argue for modification based upon a “substantial change of circumstances.” In other words, if your judgment is entered after July 1, 2013, then you cannot use the new standard to argue that your judgment should be modified to comply with the new guidelines.

OTHER CHANGES

If signed into law, the statute would also codify “bifurcation” of dissolution cases – something that presently is governed by case law. Bifurcation is the granting of an actual dissolution of the marriage while reserving jurisdiction to later enter judgment on the parenting plan, equitable distribution, alimony, and other issues.

In general, the new law provides that Court must specifically address why a bifurcation is sought and whether or not there would be “irreparable harm” to the spouses by use of the process. There are also guidelines on what temporary orders must be entered to protect the parties in the event of bifurcation.

This effectually opens up the use of bifurcation to more cases than that which was permitted by case law.