Ex-spouses deserve clarity on alimony reform

As published in the Sun Sentinal

An op-ed by Tripp Scott's Henny Shomar

The Florida Legislature passed an admirable reform of Florida’s laws on alimony and child custody last legislative session. But one part of this law is leaving some ex-spouses worrying about their futures, and they deserve certainty.

Prior to recent reforms, presiding judges could grant one of several forms: “Bridge the Gap” awards of two years or less; “Rehabilitative,” temporarily sustaining an ex-spouse restarting or establishing a career; “Durational” for a set period, primarily after a short- or moderate-duration marriage (as defined by Florida’s alimony statute, Section 61.08); and “Permanent” when one party lacked “the financial ability to meet … needs and necessities of life,” usually after a long marriage but also in shorter ones under exceptional circumstances.

But this basic alimony system was overdue for modernization. It was established back when wives were largely dependent on their husbands for income across the economic spectrum — many could not enter contracts or get credit, much less establish earning power. Today’s workplace accommodates full-time careers for women, many of whom, even those with children, have earning capacity even exceeding their husbands’.

Reflecting this growing economic independence, some advocates argued that longer-term alimony awards disincentivized recipient spouses from taking action to support themselves. Moreover, ex-spouses paying permanent alimony lamented their inability to retire on their own terms, in particular as the Florida Supreme Court had created a presumption of 65 years as a reasonable retirement age.

Then there’s the primary goal of most clients: bringing the arduous divorce process to a swift, just and predicable conclusion. This objective was undermined both by the wide latitude given to judges, which often led to very different results in comparable cases, and lack of clarity on grounds for modifying decrees. Modifications previously required a “substantial, material and unanticipated change in circumstances,” a provision Florida courts labeled an “extraordinary burden,” remarriage, or the establishment of a largely undefined “supportive relationship.”

But now, after more than a decade of attempts and three gubernatorial vetoes, the Florida Legislature has passed, and Gov. Ron DeSantis has signed, a bill addressing the need for modernization and providing greater certainty and finality to the process and aftermath.

The new law’s key step toward modernization was eliminating permanent alimony for requests pending or filed on or after July 1. Meanwhile, the bill streamlines alimony determinations through formulas largely based on length of marriage that limit, while not fully eliminating, judicial discretion in setting durational alimony awards.

The law also removes the burden that a change in circumstances be “unanticipated” and more clearly defines a “supportive relationship” as “provid(ing) financial or economic support equivalent to a marriage,” mandating that alimony or child support be modified or terminated in such cases. The bill also redefines retirement age to reflect Social Security Administration parameters — as early as 62 years — and allows consideration of customary retirement ages in payors’ professions, as well as codifying into law other factors the Supreme Court has previously suggested could be considered in determining potential relief from alimony awards.

And that’s where the controversy arises. Many ex-spouses, especially older women who might have put their careers on hold to be full-time homemakers and are fully dependent on payments from their former husbands, fear that their awards will be upended and that they will be cast into poverty. Others made concessions as part of settlements — “vested” rights that DeSantis stated could be “impaired” in justifying a previous veto.

Will such decrees already in place, especially awards of permanent alimony, be subject to retroactive modification or not? One key factor in determining the ultimate answer: The Legislature rejected an amendment specifically barring modifications for existing decrees.

All of which means the issue will be up to the courts to settle, and vulnerable ex-spouses argue they’ll be tossed into a twilight zone of worry and uncertainty, defeating a key purpose of the reforms.

And they have a case — literally — unless the Legislature steps forward one more time in its next session and provides some needed clarification, either by barring retroactive modifications or setting clearer and potentially more stringent standards in setting aside long-term awards.

The bottom line: Big, game-changing divorce reforms have arrived in Florida, and for the most part, they properly reflect the need for the law to establish certainty and keep up with changing times. But one further tweak may well be needed to ensure the security of ex-spouses.