Introduction to Florida’s Alimony Overhaul
The recent changes to the laws governing spousal support in Florida represent a significant shift in how such matters are addressed and adjudged. The bill was the third attempt in as many years to modify the laws regulating alimony in Florida with the previous two attempts failing to pass the legislature. The legislation passed this time was a concession by its proponents who explicitly removed from the bill the much-debated and controversial termination of permanent alimony payments and retroactive implications and allowed judges discretion in alimony cases.
The most notable change to the present law is the way in which alimony is determined and set. Under the new system, there are four different types of alimony awards that the statute lays out: bridge-the-gap alimony, rehabilitative alimony, durational alimony and permanent alimony. Each type of alimony has its own requirements and areas of application. Bridge-the-gap awards are intended to help cover expenses incurred between divorce and when the receiving spouse has sufficient resources to do so him or herself. Such limitations make it a type of alimony of limited duration. Rehabilitative awards are similar but not restricted to the period of time between divorce and reaching self-sufficiency. These awards are for situations where transition time is needed for the receiving spouse to start earning a sufficient income to support himself or herself after the divorce. Rehabilitative awards are also for a specific period of time and can be granted to either spouse. Durational awards are for spouses who have been married less than 17 years. The duration of the award is limited to the amount of time necessary to support the receiving spouse and diminish after the duration of the marriage has passed . The final type of award, permanent alimony, includes payments to support a spouse in need of assistance – however, such awards are now limited only to marriages that last longer than 17 years. The law passed by the legislature in June 2013 also ensures that the departure from permanent alimony payments is consistent with what happens to the rest of the country as many states have made similar termination of permanent alimony payments in their respective states.
The reason the legislature has seen these bills multiple times over the past few years shows that there is an overwhelming desire to see changes to the laws governing alimony awards such as: potential payers of alimony may be more easily turned into unwilling wage slaves forced into part-time work in order to pay alimony or the other side of the coin, a payer of alimony relegated to working multiple jobs to pay the alimony award, creating a situation where they too can barely get by. There is now the consideration of limiting alimony awards to determine the type of alimony awarded to the time and place of the marriage and making the amount of the award change in accordance with the change in circumstances of the parties while increasing the amount of time required to wait for a change in the courts decision as well as more rigid time tables on how long alimony may last. A primary target of the law is to reduce the length of paid support and narrow the situations under which it is appropriate or permissible for a court to award more permanent support measures. Those most affected by the new law will be those who will now benefit from the newly limited awards. There are several questions about the pending law still left unanswered and there is still a great deal of wiggle room in the specifics of the law that ultimately will remain for the courts to decide.
New Formula for Calculating Alimony Payments
The most significant change in the new alimony reform legislation is the method for calculating adding or subtracting the factors of the statutory formula, to determine the amount of alimony and then set a range for that alimony. This formula is only applicable to the deduction of alimony after you determine the range of alimony under the law. Keep in mind that the ranges become rebuttable presumptions since they have been codified into law. Therefore, understand that either party may deviate from the presumed ranges as long as it is supported by the evidence. The parties can always agree to deviate from the presumed ranges or even argue for a departure. Hopefully, this process will provide some level of ‘predictability’, to the alimony calculation process.
The formula compensates for time-share with children before the alimony payor’s income is reduced. Therefore, you first calculate child-support and then deduct from income the percentage that the alimony payor actually has the overnights. For example, consider the situation in which the parties’ combined net income exceeds the federal tax tables. Assume your personal and business living expenses are $10,000. Assume other expenses for the business, including taxes, depreciation, and loan payments, are $5,000 per month. Assume $3,000 in child support and that you share 50% of your daughter’s time-share. Assume that [Parent] has an after-tax income of $15,000 per month. Suppose that [Spouse] has a monthly income of $2,000. Under the old law (prior to January 1, 2019), the formula would appear as follows (approximately): Gross monthly income A includes your monthly wage, your spouse’s monthly wage, and any alimony income. This new formula differs significantly from the prior calculation in a few ways. First, the new calculation takes into consideration the IRS Federal Tax Tables. Under the prior law, this information was not considered at all. In other words, the actual amount of taxes paid in determines the net income and that amount is then reduced by 50% of the overnight share with children. Second, the old formula equaled only the spouse’s gross income divided by two.
Types of Alimony Offered
The 2010 Florida Statutes now have five types of alimony available. Each type of alimony has a specific purpose and is only available under specific circumstances. The five alimony types under the new law are :
Dissolution of Marriage and Share in Retirement Payable After the Death of the Payor
- Bridge-the-gap.
- Rehabilitative.
- Durational.
- Permanent.
- Non-dissolution alimony in the form of a share of the other spouse’s retirement pay payable after that party’s death.
Bridge-the-Gap Alimony: Bridge-the-gap alimony is designed to help a spouse transition from married life to single life by providing necessary support during the short period of time it will take that spouse to become self-sufficient. In order to qualify for bridge-the-gap alimony, the parties must actually be separated already, and there is no requirement that bridge-the-gap alimony be rehabilitative.
Rehabilitative Alimony: Rehabilitative alimony is an award designed to assist a spouse who needs additional resources to achieve postdivorce self-sufficiency. Factors to be considered under the new statute include the following: It must be noted that rehabilitative alimony may only be awarded if the spouse seeking the rehabilitation can provide the court with a specific rehabilitative plan that includes a timetable for achieving the goals of that plan.
Durational Alimony: Durational alimony is a brand new feature under the new law. This type of alimony is designed to provide economic assistance for a set period of time when permanent periodic alimony is inappropriate. When awarding durational alimony, the court must consider: Notably absent from the statute are definitions concerning community property and ownership interests. The assets that are typically classified as community property are stocks, insurance policies, and employee benefits. Ownership interests include partnership shares, limited liability company interests, frequent flyer miles, and other unexpected to be classified assets.
Impact on Current Alimony Cases
The new laws may potentially impact existing alimony agreements, but only if the agreement is determined to be un-unconscionable under the old law. If a court determines that the existing agreement is unconscionable under the previous law, that agreement would be modifiable pursuant to the new law. The test for unconscionability is largely a fact driven test. It is a fact finding process for the judge to determine whether the alimony is essentially in a more extreme place than the equities of the circumstances would bear. A court must take into account both the needs and ability of the parties to meet the new burden. It must be an equal balancing act. If it is inequitable to either party, the court should find the agreement to be unconscionable. In that case the court could modify the agreement under the new law, which would allow it to terminate or modify the alimony obligation.
Considerations and Recommendations
On the new alimony law, divorce attorney Jonathan G. Goldstein, Esq., says: "When alimony is at stake, people think: Is my check going down or is my check going up?" Despite recent reform of Florida’s alimony laws, Judge Shull writes that he has yet to see any "substantial changes on a case by case basis in front of me." Jonathan G. Goldstein, Esq. cautions: "If you are the person who is receiving the check, you want to do everything you can to have the obligations enforced and avoid being a deadbeat. Pay your fare share whether it be alimony or child support…and if you don’t, expect them to enforce the order by freezing your bank accounts, garnishing your wages until the bill is paid." Michele DiMugno, Esq. cautions: "Remember, what was once taken for granted under prior case law which considered alimony to be gender neutral is no longer necessarily the case in Florida. Gender roles have been reinforced by this new law." Ms. DiMugno further cautions: "Due to possible unfair applications of the new law, it may be wise to request a hearing during the pendency of your case, regardless of which side of the fence you are on and regardless of what amount of alimony may have been awarded to you. There are issues that need to be clarified; we will need guidance from our judges." Goldstein writes: "There are lots of angels in the details. For example, how do we treat certain assets for alimony purposes?" Family law attorney Michelle M. Pakrosnky, M.P.A., CPC, recognizes that the new law contains new pitfalls: "One potential issue raises the question of whether an income reduction resulting from the reassessment of child support on the Alimony Guidelines Worksheet might trigger alimony modification." Attorney Pakrosnky also warns: "Because both parents must invest more time and finances to the children, although many might agree to modify the timesharing schedule , during the pendency of the divorce the parties may find themselves in the annoying position of having to ask the court to modify the schedule each time they wish to change some aspect of their schedule." In material supporting his position that the new Florida law may result in increased, not decreased, litigation, Attorney Goldstein argues that "some families may find themselves at even greater adversarial extremes." Attorney Pakrosnky cautions: "Although many might agree to adjust the timesharing schedule during the pendency of divorce, Spiked emotions and the intensity surrounding the divorce may taint the parties’ ability to come to a meaningful resolution and settlement." Goldstein suggests: "The best way to get it right is to get it cleared up with the court as an issue in the case instead of waiting for the spouses to agree or disagree outside of the court system." Pakrosnky concurs: "Even if alimony is not in dispute, if timesharing must be addressed it is important that a clear Court Order reflect the same as the parties will be expected to adhere to the terms of the Order as would be any alimony payment." Goldstein warns: "There will always be fallout from change – and the timesharing issues are a near certainty. The question will be, will the time-sharing disputes become as much a fact of life as the alimony disputes have been in the past? Will we see more litigation over time-sharing?" Legal aid attorney Jeannine Cairns explains: "The family code is scary, particularly when it comes to support and custody, so you should contact an attorney immediately if you are in doubt of your legal rights. Even if the cost is a consideration, there are almost always legal assistance programs available through a local bar association." Attorney Pakrosnky advises: "Choose your battles wisely as many such issues could involve fast-paced and costly litigation." Goldstein recommends: "Find the right attorney, and you may still find ways to get a result more tailored than ever before…Trust your lawyer to be the architect of the post divorce future."
Frequently Asked Questions
What are the new formulas for determining alimony under the new laws? There are two main formulas in Florida under the new laws. For marriages of 10 years or longer, the formula for determining alimony is 0.015 times the number of months of the marriage times the difference in the parties’ gross incomes. If the difference in gross incomes is $325 or more, the higher-earning spouse should pay 30 percent.
If both parties have income less than $325 per month after income deductions and expenses, a rebuttable presumption arises that a request for alimony should be denied. If either party has gross income less than $700 per month remaining after deductions and expenses, the same rebuttable presumption arises. Rebuttables presumptions are codified by statute and are available for use by a judge when determining whether or not to award alimony.
Can judges still disregard the formulas and other factors in deciding support amounts? Judge’s discretion is greatly reduced in deciding pendente lite support and the percentage amount of alimony awards. While judges were already required to base any alimony award on statutory factors in §61.08, Florida Statutes, and the determination of child support was already based on the statutory child support guidelines in §61.30, Florida Statues, with the revisions to §§61.08 and 61.30, judges allegedly can no longer utilize the case law factors that exist in §61.08(2), including, but not limited to, the standard of living of the parties during the marriage and the tax consequences to the parties.
Can a party in a divorce case request any alimony? What proof of need is required? A party requesting any amount of alimony would still need to prove plead and prove that they have a need for alimony, which they haven’t satisfied if they have a net income of $325 a month or more.
Does the length of the marriage make a difference in whether the judge awards pendente lite support, attorney fees, and other equitable factors? Attorney fees, costs and alimony are always requested on a case by case basis and not based on a specific time period (i.e., short-term). There are various equitable factors a judge may consider in any case, including:
While attention is being drawn to the length of the marriage and a presumed equal distribution of assets acquired during the marriage, judges are still required to determine equitable distribution based upon all the statutory factors, such as the above.
Conclusion and Beyond
In conclusion, the new alimony laws in Florida signify a major shift in how courts will approach this complex and sensitive issue. While intended to bring more fairness to alimony proceedings, these changes have also been met with pushback. Critics argue that the new laws fail to account for the cost of living in certain areas and do not adequately consider the needs of spouses who have put their careers on hold to support their partners.
As we look to the future, it is likely that we will see further refinements and adjustments to these laws . Florida lawmakers are already discussing the possibility of revising the law to address some of the loopholes that were identified after its implementation. In the meantime, it is essential for anyone involved in a divorce proceeding to stay up-to-date with these changes and their implications.
Whether you are seeking to modify an existing alimony award or are just beginning the process of considering whether divorce is your best option, the new Florida laws should factor into every decision you make. It’s crucial not to underestimate the impacts of the new law on ongoing financial obligations.