Client Alert: Passage Of Alimony And Timesharing Reform

By HENNY L. SHOMAR

A NEW ERA IN FLORIDA LAW AFFECTING FAMILIES HAS ARRIVED

There is a familial debate going on in American society today. As the roles of husbands and wives have long since changed from the days of Pleasantville, with men and women competing in the global workforce and political map as equals, the traditional rules of law have lagged behind the times. In the case of alimony, a right to financial support dating back to the days of Hammurabi, Justinian, and old English law, modernization with the times has been long overdue. There are those who argue that alimony disincentivizes spouses who receive it from taking actions to support themselves. There are others who argue that after marriages in which the wife, or the husband, spent years out of the workforce taking care of the home and children to allow for the other spouse to focus on developing his or her career, the stay-at-home spouse has earned the financial security that comes with alimony which he or she cannot receive by going back into a workforce he or she has been out of for so many years. Both arguments raise valid points. Today, in Florida, the debate has largely been addressed by substantial reform to how courts address these issues. After several attempts by the Florida Legislature to reform existing laws relating to alimony, including several vetoes of previous versions by both former Governor Scott and more recently by Governor DeSantis, alimony reform is now a reality in Florida with the passage of Senate Bill 1416 and the Governor’s signature on June 30th. The bill, which was supported by the Family Law Section of The Florida Bar and the American Academy of Matrimonial Lawyers, introduces necessary changes to Florida’s alimony law, which has been debated for over a decade.

So, what is changing? Currently, in Florida, alimony is controlled by statute, specifically Florida Statute § 61.08. The statute calls for alimony to be awarded in cases where one spouse is shown by evidence to have a need for alimony, usually by showing a monthly deficit in spending based on their income alone, and the other spouse having an ability to pay for alimony. Combining other factors, as well as specified time periods to determine whether a marriage is short or long, the judge had the discretion to award alimony, which existed in several forms, including: “Bridge the Gap”, “Rehabilitative”, “Durational”, and “Permanent.” Senate Bill 1416 drastically changes Florida Statute § 61.08, eliminating permanent alimony, and attempting to streamline alimony via certain formulas which limit, but does not eliminate the judge’s discretion. In theory, these changes would partially simplify litigation in divorce cases. While alimony will not be governed by a very specific formula as child support has been since the introduction of the child support guidelines in 1987, the court is now provided certain guard rails to ultimately achieve what has been discussed for years: more predictable alimony results based on the facts presented in lieu of substantial discretion, which often led to very different results in otherwise comparable cases.

First, in what many believe is a long overdue change, permanent periodic alimony is no longer in existence in Florida as SB 1416 took effect on July 1, 2023. Pursuant to the bill, the new changes apply to petitions involving requests for alimony sought that are either still pending or filed on or after July 1, 2023, meaning that pursuant to the new statutory language, if you already have a divorce case pending in which the Court has not rendered a ruling, it will be based on the new law provided in SB 1416.

What about modification proceedings? Unlike previous attempts at alimony reform in Florida, the language in SB 1416 does not provide specific guidance on modifications of existing support obligations or whether prior awards can be modified retroactively. One would argue that based on the provision that the new law applies solely to petitions pending or otherwise filed on or after July 1, 2023, any actions with prior determinations would not be affected by the new law in subsequent modification actions. Others would argue that the changes made by SB 1416 to Florida Statute § 61.14 (enforcement and modification of support, maintenance, or alimony agreements or orders) provide modifications that would be governed by the new statute given the absence of specific guidance to follow the law as it previously was in force during that case. Instructive is an attempt at amending SB 1416 during the legislative session to provide specific language that the new legislation would not apply to agreements executed before July 1, 2023, and that this bill would not be retroactive. This amendment was voted down by the Florida Legislature, and therefore, based on the language in SB 1416 and the apparent intent of the legislature, it appears that in the event a modification is otherwise permitted, the new statute would apply. This will be up to the courts to interpret in the years to come. 

Next, the new law streamlines alimony awards for durational alimony by creating a formula to determine them within a specific range. Durational alimony may not be awarded in a marriage less than three years in length. The length of durational alimony is now prescribed – not to exceed 50% of a short-term marriage (which would be less than 10 years – a change from the current 7 years), 60% of a moderate-term marriage (which would be 10-20 years – a change from the current 7-17 years previously referred to as the “gray area”), and 75% of a long-term marriage (which would be 20 years or more – a change from the current 17+ years). Other forms of alimony remain in existence, including “Temporary”, “Bridge the Gap”, “Rehabilitative”, and “Lump-Sum”. Very few changes occurred with these types of alimony awards, however, a significant change was that rehabilitative alimony awards now may not exceed 5 years. 

It is important to note that the new law does provide an option, under exceptional circumstances, to extend durational alimony beyond what is provided for with a showing based on certain factors established by clear and convincing evidence. In other words, the court may consider the contributions to the marriage of a spouse, such as a long-term homemaker, for example, that may have trouble being self-supporting or have other disabilities or challenges which renders their ability to contribute substantially limited. However, given the standard set by SB 1416, these are indeed cases that are to be the exception rather than the norm.

SB 1416 does not merely reform alimony. The bill addresses several other things, highlighted by eliminating an “unanticipated change” in the ability to obtain a modification, changes to modification based on relocation, and defining more specifically a supportive relationship for purposes of attempting to terminate prior support obligations. The bill also amends Florida Statute § 61.14 to add in additional language as it relates to alimony payor’s anticipated retirement, defined both by the age of retirement as set forth by the Social Security Administration (which presently can be as early as 62 years old) as well as consideration of the customary retirement age based on the obligor’s profession. This is a big change as the law previously was based on the Pimm v. Pimm, 601 So.2d 534 (Fla. 1992), in which the Florida Supreme Court provided that 65 years old was the presumed reasonable retirement age and established a significant burden to show retirement before could be considered reasonable. The bill also permits a filing for modification or termination of alimony six months in advance of anticipated retirement, a change from present law which required the obligor to wait until retirement occurred.

HB 1301: Unlike previous attempts at alimony reform in Florida, SB 1416 does not contain any provisions which address timesharing of children. However, a separate bill, HB 1301, was also signed into law by Governor DeSantis, which makes changes to Florida Statute § 61.13 relating to children and timesharing. The changes include creating a presumption of equal time sharing as being in the best interests of the children which passed the Florida Legislature on a largely bi-partisan basis. Previous attempts at such a change were more controversial and resulted in vetoes.

Does a starting point of equal timesharing between the father and the mother change the way courts determine how much time a parent will be able to spend with their children? Not necessarily. There was no law that provided for such a premise before, however the old law calls for the shared parental participation and responsibility for both parents as being in the best interests of the child. The law now calls for judges to start at 50/50 timesharing as a baseline, requiring the same evidence on what is in the child’s best interests be presented before the court, allowing the court to make the appropriate determination on what timesharing schedule would be in their best interests. So aside from the starting point and the changes to certain presumptions making it more difficult to implement a timesharing schedule that deviates from 50/50 timesharing and the removal of a change being “unanticipated” as a basis to modify timesharing, in fact, very little has changed. Long gone are the days when fathers got a few weekends a month with the children if they are active fathers in the children’s lives, or vice versa for working mothers who are the breadwinners for the household. The new law does not take away the court’s ability to determine, as a matter of finality, what is in the best interests of the child, something that is universally supported. What it does is encourage a public policy that both fathers and mothers should be actively involved in their child’s lives and vice versa. While there are cases in which it is clear that this ideal unfortunately will not work, the general concept is one that parents, as well as society, should strive for.

In summary, changes have arrived in Florida. They are big. They are debatable. In the case of SB 1416 and HB 1301, they are game changers. As time progresses and we see these laws in application, it is likely that we will find that they streamline what is already a painful and emotional process for almost anyone who goes through it. Most of our clients tell us that their primary goals are to bring the process to a swift, just, and predictable conclusion. SB 1416 and HB 1301 go a long way toward helping achieve those goals for cases in Florida in the months and years to come.