Florida is one step closer to having specific guidelines for alimony. A bill has passed through the legislature. If approved by the governor the bill would become law on October 1, 2016.
Presently, alimony is determined based upon a balancing of the needs of the recipient against the ability to pay by the obligor. The new law, in addition to providing specific guidelines for determining alimony by substantially rewording section 61.08, amends several sections of existing law, including:
i. The section on alimony pendente lite (61.071) by requiring specific written findings of fact regarding the 14 alimony factors, and specifically excluding the court from using the new guidelines to calculate alimony pendent lite.
ii. The section on modification and enforcement of support (61.14) by:
a. Adding language indicating that the court may not decrease or increase the duration of alimony provided for in a settlement agreement
b. Providing for an immediate cause of action for a modification of alimony if the actual income earned by other party exceeds by at least 10 percent the amount imputed to that party at the time the existing alimony award was established, but tempers that by indicating that the change in income alone does not automatically entitle a person to an increase in the alimony award unless the obligor had been determined to be un- or under-employed and income was not imputed at their maximum income potential.
c. Providing for an immediate modification cause of action if an obligor becomes involuntarily under- or unemployed for 6 months
d. Providing that termination of alimony can be granted if it a finding is made that a supportive relationship existed within the previous year before the filing of a petition for modification
e. Removing the requirement that the recipient and the person with whom they are in a supportive relationship must reside together.
f. Removing the requirement that the burden is on the obligor to prove that a supportive relationship exists.
g. Providing that if reduction or termination is granted because of a supportive relationship, that reduction or termination is retroactive to the date of filing the petition requesting reduction or termination
h. Adding a section that indicates that remarriage of an obligor DOES NOT constitute a substantial change in circumstances for the purpose of modification
i. Adding a section that indicates that a subsequent spouse’s financial information is inadmissible and may not be considered as part of a modification action unless that party claims that their income has decreased since the marriage
j. Adding a section that specifically allows an obligor to request modification based upon actual retirement. In such a case:
i. A substantial change in circumstances is deemed to exist if the obligor has reached an age to be eligible for full retirement benefits under the Social Security Act or the customary retirement age for his occupation
ii. The obligor can file the modification case within 1 year of anticipated retirement under the guidelines above
iii. If an obligor retires before reaching the above ages, to obtain a modification there must be a finding that retirement is reasonable after consideration of age, health and motivation for retirement, and the financial impact of the obligee.
iv. If a substantial change in circumstance is found, there is a rebuttable presumption that alimony will be modified or terminate, and in overcoming that presumption there are 6 factors that the court must consider
v. A temporary modification or suspension of alimony may be granted
k. Adding a section that punishes a person who unreasonably brings an action to modify or unreasonably defends such an action by awarding attorney’s fees and costs in accordance with section 61.16
l. Adding a section that declares modification is presumptively retroactive to the date of filing, but that presumption is rebuttable
iii. The section of child support guidelines (61.30) by requiring an adjustment of child support if the combined award of alimony and child support under the guidelines would exceed 55 percent of the payor’s net income
iv. The creation of a new section 61.192, entitled Advancing Trial, which allows a party to move to advance their case on the docket if two years have passed since the initial petition was served.
v. The new law will apply only to initial determinations of alimony and modifications of alimony that are pending as of October 1, 2016. Also, the new law may not serve as the sole basis for modifications of alimony awards made before that date.
vi. The new alimony guidelines will provide presumptive ranges for 1) amount and 2) duration of alimony. The low end of the amount range will be determined by the formula:
i. 0.015 X years of the marriage X the difference between the monthly gross incomes of the parties
vii. The high end of the amount range will be determined by the formula:
i. 0.020 X years of the marriage X the difference between the monthly gross incomes of the parties
viii. The low end for the duration range will be determined by the formula:
i. 0.25 X the years of marriage
ix. The high end for the duration range will be determined by the formula:
i. .75 X the years of marriage
x. For calculation purposes in marriages of 20 years or more, 20 shall be used in the formula for the years of marriage. The income of the party seeking alimony is to be subtracted from the other party, and if that calculation yields a negative number, the presumptive alimony is $0. If the duration of alimony is set by the court at 50 percent or less than the length of the marriage, the court shall use the actual years of marriage, up to 25, to calculate the high end of the amount range.
xi. For marriages of 2 years or less, there will be a rebuttable presumption that no alimony will be awarded, and before the court awards alimony in such cases the court will be required to make written findings upon clear and convincing evidence of a need for alimony, an ability to pay alimony, and that the failure to award alimony is inequitable. If those findings are made then alimony is calculated as though the marriage lasted more than 2 years.
xii. For marriages of more than 2 years, the formulas are applied, and a presumption arises that alimony will be paid within the low and high ends of the duration range. Discretion is permitted within the ranges based upon 13 specific factors and a 14th factor that is non-specific (“any other factor necessary to do equity and justice between the parties”).
xiii. The law will permit deviation from the guidelines, but only if the court makes specific written findings concerning the factors which justify deviation. An alimony order must clearly set forth the amount and duration of the award, and there must also be a finding that the payor has the financial ability to pay the award.
xiv. Nominal alimony of $1 per year can be awarded if the party who provided the primary source of financial support in the marriage temporarily lacks the ability to pay and it is reasonably anticipated that they will have the ability to pay in the future. Nominal alimony is also awardable for a recipient who is presently able to work but for whom a medical condition with a reasonable degree of medical certainty may inhibit or prevent his or her ability to work during the duration of the alimony period. Nominal alimony can be modified only before the expiration of the durational period.
xv. The court may order alimony to be nondeductible by the payor and nonincludable in the income of the recipient. Alimony will automatically terminate upon the death of either party or the remarriage of the recipient. A court may not modify the duration of alimony that is initially established under this law.
We shall see if the governor signs this game-changing legislation soon!