Welcome to the Florida Family Lawyer Blog

The posts in this blog focus on Florida family law issues including divorce , child custody/time-sharing , child support , mediation , domestic violence , parenting coordination , parenting rights of same-sex couples , and other family law topics. The posts discuss these topics under Florida law, and also focus on the family law local rules in Broward, Dade and Palm Beach Counties.

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Articles Posted in Alimony

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Continued from Part I. Gov. Scott vetoed the Florida alimony reform bill discussed in Part I of this post, based on the bill’s applying retroactively to alimony orders entered in the past, even many years prior to the bill’s passage. There is a pretty good chance there will be a push in upcoming legislative sessions for alimony reforms similar to those passed this year, without perhaps a provision for retroactive application, so it is worth the time I think to look at some of the other significant alimony provisions in this past session’s bill.

The bill removed the standard of living established during the marriage as a factor to consider in awarding alimony, and replaced that with “the needs and necessities of life” after the divorce, “taking into account the lifestyle of the parties during the marriage” and subject to a presumption that each party’s lifestyle will diminish following the divorce. For an award of durational alimony, the reform bill required the court to find that no other form of alimony is appropriate. This, along with other provisions including an unclear provision earlier in the bill prioritizing bridge-the-gap and rehabilitative alimony and seeming to indicate that durational alimony should further rehabilitation as well, seem to indicate an attempt in the bill to move away from a higher earning spouse supporting the lower earning to equalize their standards of living for some period of time following the divorce, although it would remain to be seen how such provisions would be interpreted by the courts.

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A new Florida alimony law recently was passed by Florida’s House of Representatives and Senate, and if signed by Governor Scott, goes into effect on July 1, 2013. An extremely significant provision of the new law is that it also applies retroactively to alimony orders entered before July, 2013 – more about that Part II or III of this post (The act that passed through the legislature also makes a change to the valuation of real estate in particular scenarios in a divorce, and a change to Florida’s time-sharing statute, creating a provision in the statute that equal time-sharing is in the best interests of the child(ren), unless certain conditions are present).

The alimony provisions of the act would change the definition of short-term marriage to less than 11 years; define a mid-term marriage as 11 to less than 20 years; and long-term as 20 years or more. The current ranges are 0 to 7, 7 to 17 and 17 or more (the term of the marriage is important for the forms of alimony available). The act eliminates permanent alimony, and provides that a court may award bridge-the-gap, rehabilitative, or durational alimony or a combination of these types of alimony, but shall “prioritize” bridge-the-gap alimony first, and then rehabilitative alimony above any other form of alimony. (A rehabilitation plan is a fairly detailed plan which lays out how the spouse receiving alimony is going to go about increasing their skills or earning capacity). The remaining type of alimony is durational alimony – alimony for a set number of years. You can follow this link for a description of the different types of alimony. The act apparently provides (in new section 61.08(2)(b)) that although a court may combine the different types of alimony, giving priority as listed above, it may order “only a combination of forms of alimony to provide greater economic assistance in order to allow the recipient to achieve rehabilitation.”

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The Third District Court of Appeals – the Florida appeals court covering Miami-Dade and Monroe Counties, decided a case this year that provides guidance regarding what it means to use the marital standard of living for determining Florida alimony – Quinones v. Quinones, 37 Fla. L. Weekly D 699 (Fla. 3rd DCA, Mar. 21, 2012). The Florida alimony statute, Florida Statutes Section 61.08, lists a number of factors to consider in determining whether to award permanent alimony, or other types of alimony called durational alimony, rehabilitative alimony, and bridge-the-gap alimony. The Quinones case involved an award of permanent alimony, and this post will focus on what it means to use the “marital standard of living” in determining the amount of monthly permanent alimony. “Permanent” alimony continues until one former spouse dies or the payee remarries, and can also be modified if the payee enters into a “supportive relationship” or there is a substantial change in circumstances. Spouses, in their Marital Settlement Agreement, sometimes change the rules that apply to alimony and when it can or can’t be modified.

The two primary factors considered in determining Florida alimony are the receiving spouse’s need and the paying spouse’s ability to pay, and one of the primary factors used in determining need is the marital standard of living. The ruling of the 3rd DCA in the Quinones case was that the marital standard of living is basically what the term says – the standard of living during the marriage, or the amount the couple spent on their various expenses during the marriage – e.g. mortgage, entertainment, grooming, household expenses. So if the couple lived an extravagant life-style during their marriage, and a spouse needs $20,000 to afford the same home, vacations, entertainment, etc. as enjoyed during the marriage, then $20,000 is an appropriate amount to consider as the amount needed.

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Florida’s alimony statute, F.S. § 61.08, has gone through some significant changes over the past two years. There are rules now which help spell out what are “long-term”, “short-term” and “moderate-term” marriages – see F.S. 61.08(4). The Florida legislature defined a new kind of alimony – “durational alimony”, which is something in between permanent and “bridge-the-gap” alimony, and can have a duration up to the length of the marriage – e.g. a maximum term for durational alimony of 10 years, following a 10 year marriage.

One of the most significant changes in the statute is an addition to the permanent alimony section, F.S. 61.08(8): “In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.” Before the changes to the alimony statute, and before the recent change adding this sentence, a conventional wisdom was that for a long-term marriage that was at least some degree of a presumption in favor of an award of permanent alimony. This new sentence in section 61.08(8), I believe, pretty clearly changes that calculation.

Spouses will still have at their disposal all of the reasons and arguments that have supported requests for permanent alimony in the past, and presumably Judges in the past didn’t award permanent alimony if they believed there was no need for it, because other forms of alimony could adequately provide for the recipient spouse. Attorneys and spouses requesting permanent alimony in the past have argued that it was needed because other forms of alimony were not adequate; and attorneys or spouses advocating against permanent alimony could always argue that It was not appropriate because some other award was fair and reasonable. Similarly, many people argue, with plenty of good reasons, that presumptions don’t decide cases, i.e. a Judge will look at a case and attempt to do what is fair – that is, make a decision, rather than decide a case based on a presumption. But presumptions or burdens of proof do decide some cases. In a close case, a bit of a presumption can change the thinking in the courtroom or Judges Chambers (where family law cases in most counties are heard).

Perhaps an even more significant effect of the new language in the permanent alimony section, is on negotiations between the parties or attorneys, or in mediation. The requirement that the Judge make an “affirmative” finding that no other form of alimony is appropriate, can change the calculations in a negotiation. In general, it seems to me, at least as I’m writing this, as if there is a bit of pressure coming to play against awards of permanent alimony in Florida, but alimony, as most people acknowledge, is one of the more subjective issues in family law.

It may have something to do with the state of the economy. I’ve heard some personal injury attorneys mention that juries are sometimes less inclined to award large judgments in bad economic times, maybe because it seems like a windfall. Perhaps when there is risk, uncertainty or hardship in the economy, it seems tough to award permanent alimony, unless it’s a situation where it is clear there is no other other available, adequate form of support. However, as there was before the changes to the statute, there is always “the other side” — when spouses have been married a long-time, one spouse is doing well, and it looks like the other spouse can never earn at the same level or maintain the marital standard of living, then permanent alimony can or will look like the only form of support that is fair or reasonable. Incidentally, when the amount of alimony is in dispute, there’s a pretty good chance it’s going to one of the final issues everyone is going back and forth on, as a mediation or an attempt to settle a case comes to close.

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The dissent in Hill v. Hill, 36 Fla. L. Weekly D 475 (Fla. 3rd DCA, March, 2, 2011) saw the case much differently than the majority. The dissenting Judge saw the majority’s opinion as overturning the trial court’s order from 1990, even though the time for appealing the decision had expired long ago, and the Husband had never appealed. The trial judge’s order in 1990 provided that the trial court was retaining jurisdiction to address alimony at a later date, in contemplation of the Husband’s income increasing when he began receiving his pension. From the dissent’s perspective, that decision became final thirty days after it was filed, and if the Husband had been dissatisfied with the order he should have appealed within the required time-frame.

The dissenting opinion also addressed several legal arguments regarding whether the Husband had “waived” any objection regarding jurisdiction to consider alimony, and whether the appeals court had the authority to decide the case based on a jurisdiction issue, when the Husband’s attorney hadn’t “raised” (made) this argument as part of his appeal. The dissent points out that the jurisdiction issue was first raised by the appeals court itself during the oral argument, neither attorney argued the jurisdiction issue in their legal briefs or addressed it during oral argument, and that the majority had not asked the attorneys to address the issue in supplemental briefs.

The dissent points out that if the Husband had appealed the reservation of jurisdiction over alimony in 1990, the appeals court would not have made a decision like it was doing now which takes alimony away from the Wife forever, but rather would have “remanded” the case back to the trial court to enter appropriate findings of fact. Remanded basically means to send the case back to the trial court, with instructions as to what the appeals court wants the lower (trial) court to do.

The majority opinions, on the other hand, in effect said that the Wife or the Wife’s attorney at the time of the trial in 1990, was responsible for insuring that the order contained all the proper findings to support reservation of jurisdiction regarding alimony; that the Wife should have appealed to make sure the order had what it needed to have; and if the order did not contain the required findings it had no legal effect. There are also ways short of an appeal to correct an order before it becomes final, by filing an appropriate motion. In practice, sometimes the Judge prepares the final order, for example when a party is not represented, but when a party has an attorney, the Judge usually instructs the prevailing party’s attorney to prepare the order.

As mentioned in Part I of the post, the appeals court decision in the Hill case is not final yet – the Wife’s attorney filed a Motion for Rehearing. I haven’t fully researched yet myself the issues raised by the majority and dissenting opinions, but it’s not infrequent that you think there should be a case out there clearly deciding some issue, but when you check, there isn’t. Sometimes it’s an issue that hasn’t been decided yet by an appeals court, and there are five different state court appeals districts in Florida which sometimes arrive at different decisions regarding the exact same issue. That’s when an issue sometimes ends up before the Florida Supreme Court.

The moral of the story, or advice for spouses now who want to be sure a trial court retains jurisdiction over alimony, is to be sure to include in the Final Judgment all the findings and requirements appeals courts have suggested are necessary for a trial court to properly retain jurisdiction. This includes, after giving due regard for the decisions of the appeals court covering your county and the particular facts of your case, making findings regarding all the relevant factors for determining alimony listed in the Florida alimony statute – F.S. § 61.08, awarding nominal alimony, and addressing the duration of the reservation of jurisdiction. It doesn’t make sense to take chances with an issue as significant as losing the right to possibly receive alimony in the future.

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The Florida Court of Appeal for the 3rd District of Florida (the appeals District that covers Dade and Monroe Counties) recently filed a significant opinion dealing with what has to happen for a court to “reserve” jurisdiction to award alimony, Hill v. Hill, 36 Fla. L. Weekly D 475 (Fla. 3rd DCA, March, 2, 2011). The opinion isn’t final yet – one of the parties has filed a Motion for a Rehearing – i.e. a request for the appellate court to hear the case again and reconsider its opinion. I’ll include in a future post more about the different courts in Florida, and the appeals process.

Reserving jurisdiction regarding alimony means the court is not awarding alimony at the time of the divorce, but is saying it will consider awarding alimony in the future. This is allowed under Florida law, for example, when one spouse needs alimony at the time of the divorce, but the other spouse does not have the ability to pay. Reserving jurisdiction is important, because if the court doesn’t award alimony at the time of the divorce, and jurisdiction is not properly reserved or retained, alimony is gone forever, which is what has happened so far for the Wife in the Hill case.

In this case, the trial court’s final divorce judgment in 1990 reserved jurisdiction to determine alimony in the future, when it was expected that the Husband’s income would increase when he started to receive his retirement pension. The Wife returned to Court in 2006 after the Husband retired and began receiving his pension, received an award of alimony in 2008, and the Husband appealed. Basically, the appeals court ruled the trial court’s simply stating in it’s opinion that it was reserving jurisdiction was not sufficient.

Although the formulation of what is required to properly reserve jurisdiction is stated a little differently in different parts of the appellate opinion, the opinion concludes with indicating that the trial court was required to have made a determination in 1990 regarding the Wife’s need for and entitlement to alimony, or to at least have awarded “nominal” alimony (e.g. $1 per month), and also to have set out some appropriate duration for how long it was reserving jurisdiction. The appellate court ruled that the trial court in 1990 simply stated that it was reserving jurisdiction without making any of the required findings or determinations, and therefore was not permitted in 2008 to award alimony – i.e. the attempted reservation of jurisdiction in 1990 was not effective because it didn’t follow the rules. (A trial court makes a determination or “findings” by including in it’s Order written statements of fact, e.g. “The Court finds ……”)

The “dissenting” opinion in the case saw things much differently than the majority. I’ll describe that in Part II of this post, as well as the implications, or moral of the story for spouses going through a divorce now. (There were three judges on the appeals “panel” in this case. One Judge wrote the official opinion of the court, and another wrote a concurring opinion that agrees with the ruling of the case – i.e. that the Wife could not receive alimony now, and added some additional or different reasoning than the primary opinion. The third Judge in this case wrote a dissenting opinion that disagrees with the ruling of the other two judges. The two judges who agreed with a result together make up the “majority” (2 out of 3) decision of the court).