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.
The bill limited durational alimony to one-half the duration of the marriage unless the party requesting alimony proves a longer duration is needed; and created a rebuttable presumption against an award of any alimony in a short-term marriage – i.e. a marriage of eleven years or less. To receive an award of durational alimony for a short-term marriage, the bill would require the requesting spouse to prove by “clear and convincing” evidence that there is a need for this type of alimony; an award of bridge-the-gap or rehabilitative alimony following a short-term marriage would be available if the requesting spouse proved need by a “preponderance of the evidence”, which is the standard for most issues at trial in a family law case. It’s possible to prove an issue/fact by clear and convincing evidence – it has to be clear to the Judge, not just that the scale tilts slightly in your favor, but depending on the facts of the case, it makes it more difficult.
There is a significant provision in the bill that the payor’s income used for calculating alimony does not include sources of income acquired outside of the marriage that were not relied on during the marriage, which would remove some sources of income that are currently used for determining the amount of alimony. It is a significant shift from the current framework for calculating alimony. As one example — if the payor’s income following divorce came to be made up entirely or almost entirely of income from investment or retirement assets acquired “outside” the marriage, that could result in a large alimony reduction/modification.
Another significant section of the reform bill sets out rules for the amount of income to impute to a spouse who is unemployed (the provision does not apply for a long-term marriage). For example, for a spouse who has been unemployed for less than one year at the time the petition for dissolution of marriage is filed, income “shall” be imputed to them in the amount of 90% of their “prior monthly net income”. The term “prior monthly net income” is not defined, although it seems a court would have discretion to determine prior income as not necessarily being income at the very last job a person held. There is a provision allowing the spouse to whom income is imputed to prove that they can not earn that income amount, but apparently no provision allowing the other spouse to prove the unemployed spouse could earn more than the imputed percentage — which ranges from 90% if unemployed for less than one year to 40% if unemployed for at least five years. Having the provision regarding imputing income does provide additional guidance regarding this issue, without the need for the parties to retain vocational experts to evaluate a spouse and testify in court, which can be expensive, especially if the amounts at stake in the case don’t warrant that expense or the parties cannot afford to hire experts. However, if it’s not possible to impute more than the percentage set out in the bill when appropriate, it seems that would be a problem.
Granted that many people have put a lot more time than I have into pouring through the provisions of the reform bill – but there is a lot in there – much more than addressed in these two posts. The current alimony statute, Florida Statutes Section 61.08, isn’t brief, but one reaction to the reform bill is that it seems like it may be in places a bit unclear.