Hope and Change. Proponents of alimony reform have been working for more than a decade to bring meaningful change to Florida’s alimony laws. The alimony reform issue was previously before the Florida Legislature five separate sessions, and the last three alimony reform bills passed by the Legislature were vetoed by the Governor. Many family law attorneys were fatigued from the reform process, many of them analyzing the intricacies of each bill that passed, only to see it vetoed at the last minute. Reform efforts seemed necessary, however, as one could count on two hands the number of states that still maintain the antiquated concept of permanent alimony. Now, you can put a finger down because Florida is no longer among them, at least in the absence of “exceptional circumstances.” On June 30, 2023, Florida Governor DeSantis signed SB 1416 (the “Alimony Reform Bill”), legislation overhauling Florida’s alimony framework.
Spirit of the Florida Alimony Reform Bill. The spirit of the Alimony Reform Bill is much different from prior versions that were not signed into law. This generation of reform reflects a greater sense of compromise. Notably, the new law had the support of the Family Law Section of the Florida Bar. The Alimony Reform Bill was passed after extensive comment and input from the Family Law Section.
Obvious Compromises. The new law does not apply retroactively, which was a major point of contention with prior reform efforts. Instead, current obligors receive a statutory right to “reasonable retirement” and new language regarding “supportive relationships.” The legislation also appears to give “reform advocates” what they want by eliminating “permanent alimony” in normal cases and injecting the alimony statute with a vibe that former spouses are capable of self-support or should become capable. On the other hand, the legislation also gives the lawyers plenty of room to argue for “exceptional cases” that might justify special treatment. Similarly, the alimony reform puts a “cap” on durational alimony at 35% of the difference between the parties’ respective incomes, but the law allows courts to combine different types of alimony in a single case.
When the New Law Takes Effect. The Alimony Reform Bill applies to every alimony case that is pending or filed after July 1, 2023. So, if you have a new case or an active case as of July 1, 2023, the new law applies to you. The Alimony Reform Bill also provides new laws pertaining to modification of existing alimony awards, including laws related to modifications based on supportive relationships and retirement.
Burden of Proof and Written Findings. The new law expressly states that the party seeking alimony has the burden of proving their need for alimony and the other party’s ability to pay. The law also requires the court to make written factual findings regarding the type, amount, and the duration of any alimony awarded. The same requirement for written findings applies to the denial of any award.
The Alimony Factors. Many of the factors that a court must consider when awarding alimony did not change with the new law. There are new vibes, however, that resonate through the factors pertaining to mental health and disabilities, the ability of a potential recipient to become self-supporting, and alimony as support for the needs and necessities of life. The factors are set forth below, with substantive new language in italics:
a. The duration of the marriage.
b. The standard of living established during the marriage and the anticipated needs and necessities of life for each party after the entry of the final judgment.
c. The age, and the physical, mental, and emotional condition of each party, including whether either party is physically or mentally disabled and the resulting impact on either the obligee’s ability to provide for his or her own needs or the obligor’s ability to pay alimony and whether such conditions are expected to be temporary or permanent.
d. The resources and income of each party, including the income generated from both nonmarital and the marital assets.
e. The earning capacities, educational levels, vocational skills, and employability of the parties, including the ability of either party to obtain the necessary skills or education to become self-supporting or to contribute to his or her self support prior to the termination of the support, maintenance, or alimony award.
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.
g. The responsibilities each party will have with regard to any minor children whom the parties have in common, with special consideration given to the need to care for a child with a mental or physical disability.
h. Any other factor necessary for equity and justice between the parties, which shall be specifically identified in the written findings of fact. This may include a finding of a supportive relationship as provided for in s. 61.14(1)(b) or a reasonable retirement as provided for in s. 61.14(1)(c)1.
Types of Available Alimony. The alimony reform law limited the types of alimony available and made some modest changes to each type. The courts are permitted to award multiple types of alimony in combination.
a. Temporary Alimony. The new alimony statute expressly includes temporary alimony as a recognized form of alimony. Two recent cases out of Florida’s First District Court of Appeals call into question the constitutionality of awarding a spouse temporary alimony retroactive to the date of filing the divorce case. See, e.g., Guimbellot v. Guimbellot, 353 So. 3d 75 (Fla. 1st DCA 2022). The practice of awarding temporary and retroactive temporary alimony has existed for decades. The new statute provides clarity concerning authority to award temporary alimony but does not clearly put to rest the issue of retroactive awards. Retroactive awards allow the court to provide alimony where a spouse should have provided temporary alimony during the case and failed to do so.
b. Bridge the Gap Alimony. Bridge the gap alimony remains available for up to 2 years to assist a party with legitimate, identifiable short terms needs in making the transition from being married to being single. Bridge the gap alimony is not modifiable in amount or duration.
c. Rehabilitative Alimony. Rehabilitative alimony is available for up to 5 years to assist a party in redeveloping or acquiring skills or training necessary to establish the capacity for employment and self-support. Any award of rehabilitative alimony must still be supported by a specific and defined rehabilitative plan. Rehabilitative alimony may be modified or terminated if there is a substantial change in circumstances, for non-compliance with the rehabilitative plan, or for completion of the rehabilitative plan.
d. Durational Alimony. Durational alimony provides economic assistance for a set period of time. The duration of the alimony is based on the duration of the marriage, which is normally defined as date of marriage until the date of filing the divorce case.
e. Lump Sum Alimony. The new statute still allows for alimony to be awarded in periodic or lump sum payments. Courts are permitted to award a combination of forms of alimony or forms of payment, including lump sum payments, to provide greater economic assistance to allow the recipient to achieve self-support. Expressly permitting lump sum payments to allow a recipient to achieve self-support is interesting to the extent that it might allow a recipient to ask for a business, income producing property, or money to start a business or income producing property.
Term of Durational Alimony. Limits are set on the term of durational alimony awarded based on the length of the marriage. The classifications are set as rebuttable presumptions to allow for lengthy separations, long engagements, and other fact patterns that might justify a deviation from the fixed time constraints. The classifications of marriages and limits on duration of alimony is set forth below:
a. For marriages lasting less than 3 years, no durational alimony is allowed.
b. For “short term” marriages (lasting 3 to 10 years), the duration of any award cannot exceed 50% of the length of the marriage.
c. For “moderate term” marriages (lasting 10 to 20 years), the duration of any award cannot exceed 60% of the length of the marriage.
d. For “long-term” marriages (lasting more than 20 years), the duration of any award cannot exceed 75% of the length of the marriage.
Temporary Support and Duration of Alimony Award. The alimony reform bill does legislatively answer whether temporary alimony paid during the pendency of a divorce case is included in the duration of any alimony award. This issue has been argued in many courtrooms since durational alimony was first introduced.
Extending Durational Alimony Under Exceptional Circumstances. The term of durational alimony may only be extended when a party proves by clear and convincing that exceptional circumstances exist under the alimony factors and other special considerations, including a party’s inability for self-support, lack of resources, physical or mental disability, or obligation to care for disabled children.
Limits on the Amount of Alimony Awards. For durational alimony awards, the amount determined to be the recipients “reasonable need,” or an amount not to exceed 35 percent of the difference between the parties’ net incomes, whichever amount is less. In other words, alimony equals “reasonable need” but cannot exceed 35 percent of the difference between the parties’ incomes. Courts, however, are allowed to combine different types of alimony when fashioning an alimony award. This allows alimony to exceed the 35% cap for durational alimony. Regardless of the type of alimony, the statute maintains the existing limit that the total award 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. Again, the statute provides a cap and allows the lawyers to seek a deviation under exceptional circumstances.
Life Insurance, Bond, and Security Requirements. The alimony reform law also includes express language requiring written findings of special circumstances prior to forcing a party to secure the alimony obligation with life insurance, a bond, or other security.
Supportive Relationships. The alimony reform bill also revises the language of section 61.14, Florida Statutes, concerning modification of alimony for supportive relationships. Specifically, The court must reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the recipient and a person who is not related to the obligee by consanguinity or affinity. The new bill now makes modifications mandatory (changing “may” to “must”) when a supportive relationship exists. A supportive relationship cannot be with a blood relative. The previous requirement of residing together is also removed.
What is a Supportive Relationship. The Alimony Reform Bill provides eleven modified factors for consideration when determining whether a supportive relationship exists between the recipient and the other person: (a) whether they held themselves out a married; (b) how long they resided together; (c) the extent to which they combined their finances; (d) the extent to which they financially supported one another; (e) the extent to which one has provided valuable services for the other; (f) the extent to which one has provided valuable services for the other’s business or employer; (g) the extent to which they worked together or acquire or improve assets; (h) the extent to which they jointly contributed to the purchase or real or personal property; (i) the extent to which they have an express or implied agreement regarding financial support or sharing property; and (k) the extent to which they provide support to the other’s children or family members. Courts may consider the extent to which the alimony obligor has paid the existing alimony award or failed to do so and the existence of any arrearage.
Reasonable Retirement. A key area of focus for alimony reformers was an express, statutory right to retire. The alimony reform law provided a watered down solution. Specifically, the new law expressly allows courts to reduce or terminate an award of alimony upon specific, written findings of fact that the obligor has reached normal retirement age as defined by the Social Security Administration or the customary retirement age for his or her profession and that the payor has taken demonstrative and measurable efforts or actions to retire or has actually retired. The alimony payer must prove that the retirement reduces their ability to pay alimony. If the court determines that the payor’s retirement has reduced or will reduce the obligor’s ability to pay, the burden shifts to the recipient to prove that the payor’s alimony obligation should not be terminated or reduced.
Factors for Reducing or Terminating Alimony Upon Retirement. The Alimony Reform Bill also provides ten (10) factors for courts to consider when deciding whether to reduce or terminate alimony after a payor’s retirement: (a) The age and health of the payor; (b) the nature and type of work performed by the payor; (c) the customary retirement age in the payor’s profession; (d) the payor’s motivation for retirement and likelihood of returning to work; (e) the needs of the recipient and the recipient’s ability to contribute toward their own basic needs; (f) the economic impact that a termination or reduction of alimony would have on the recipient; (g) all assets of the parties accumulated or acquired prior to the marriage, during the marriage, or after the marriage, as well as their respective roles in the wasteful depletion of any marital assets received; (h) the income of the obligee and the obligor earned during or after the marriage; (i) any social security benefits, retirement plan benefits, or pension benefits; and (j) the payor’s compliance with the existing alimony obligation.
Right to Seek Relief Prior to Actual Retirement. Significantly, the Alimony Reform Bill allows a party seeking modification due to retirement to file a petition up to six months prior to the actual retirement date. The modification is not effective, however, until the actual retirement date. This simply allows a party to initiate an action, exchange financial disclosures, start discovery, and potentially set a temporary or final hearing in anticipation of the retirement. Otherwise, a party could not obtain relief until long after the retirement occurred.
Analysis and Conclusion. Florida’s Alimony Reform Bill does not provide everything that alimony reform advocates might have hoped. It does bring to an end to routine awards of permanent alimony. It does set rational limits on the amount and duration of alimony awards. It provides a statutory right to seek modification of alimony on retirement. The Alimony Reform Bill also expands the concept of a supportive relationship.