Typically, a court may look at all sources of income when determining whether a party has the ability to pay alimony or the need for alimony. This includes wages and income from investments.
Proposed 2013 Changes to Florida’s Alimony Laws
Written by DeWitt Law Firm, P.A. on March 3, 2013 in Alimony, (0) comments
Listen to Sherri DeWitt on DeWitt Law Review: Proposed 2013 Changes to Florida’s Alimony Laws
Senate Bill 718 and House Bill 0231 propose major changes in Florida’s alimony laws.
These bills revise the factors to be used to determine the amount and length of alimony awards. They place the burden on the recipient to show entitlement and eliminate the concept of permanent periodic alimony as it exists. Below is a summary of some of the major changes proposed in SB 718:
1. The standard of living the parties enjoyed during the marriage would no longer be a factor in determining the amount of alimony. It would be replaced by an analysis of the new standard of living the parties would have after the divorce and recognizes that each would have a lower standard of living than when they lived together.
2. Not all sources of income would be considered for an alimony award, only those that are marital or that were relied on during the marriage. This means that under the proposed legislation, if an obligor had an inheritance that was not used by the parties during the marriage, those funds could not be used to determine the obligor’s ability to pay.
3. A long term marriage is redefined from a marriage of at least 17 years to a marriage of at least 20 years. There is a rebuttable presumption in favor of alimony in a long term marriage, but the obligor has the opportunity to show by clear and convincing evidence that the obligee has no need for alimony. An alimony award as a result of a long term marriage is not to exceed 33% on the obligor’s net income.
4. A mid-term marriage is redefined from between 7 and 17 years to more than 10 but less than 20 years. There is no presumption in favor of alimony for a mid-term marriage. The obligee must prove by a preponderance of the evidence both need and the obligor’s ability to pay. If this burden is met, the award may not exceed 30% of the obligor’s net income and may not last more than half of the length of the marriage, unless there is clear and convincing evidence of exceptional circumstances.
5. A short term marriage is redefined from less than 7 years to 10 years or less. Under the proposed legislation, there would be a rebuttable presumption against alimony for a short term marriage and the alimony amount may not exceed 20% of the obligor’s net income.
6. The duration of alimony awards may be extended if the obligor can prove by clear and convincing evidence a continued need and the court determines the obligor has the continuing ability to pay.
7. The Court must find that other types of alimony, such as bridge the gap or rehabilitative are not appropriate before awarding durational alimony.
8. Alimony would automatically terminate or be reduced when the obligor reaches the normal retirement age for social security, unless the oblige can prove by clear and convincing evidence that the need for alimony at the established level continues to exist and the obligor’s ability to pay has not been diminished.
9. Alimony may not be awarded to a party who has a monthly net income equal to or greater than the other party. Except in long term marriages. the court would impute income to the recipient as follows:
90% of net prior income if unemployed for less than 1 year
80% of net prior income if unemployed for between 1 and 2 years
70% of net prior income if unemployed for between 2 and 3 years
60% of net prior income if unemployed for between 3 and 4 years
50% of net prior income if unemployed for between 4 and 5 years
40% of net prior income if unemployed for 5 years or the monthly net income of a minimum wage earner whichever is greater. Unless the recipient can show the actual inability to earn the imputed amount.
10. The termination or modification of child support would not be sufficient grounds to increase an alimony award.
11. An upward modification of alimony requires proof by clear and convincing evidence. :
12. Life insurance will be required to secure an alimony award only if court finds it is warranted by special circumstances.
13. The court may award attorneys fees if an oblige unnecessarily or unreasonably litigates a petition for modification of alimony.
14. The proceedings may not be bifurcated during the first 180 days after the petition for dissolution is filed, unless there are written findings of exceptional circumstances and that granting a final judgment of dissolution while reserving jurisdiction on other substantive issues will not cause irreparable harm to the parties or the children. The proceedings may be bifurcated after 180 days only if the court enters temporary orders to protect the parties and the children. After 365 days, the court will enter a final judgment of dissolution unless the parties can show it would cause irreparable harm to do so.
15. The proposed legislation would be retroactive and would apply to all modifiable awards and agreements if the agreement is 25% or more in duration or amount than provided for in the new legislation. Modification petitions would be allowed gradually as follows:
For alimony awards or modified awards entered prior to July 1, 2013:
If the obligor has been married 8 or ore years, the obligor can petition for modification under the proposed legislation after July 1, 2013
If the obligor has been married between 8 and 15 years he or she can petition for modification after July1, 2014
If the obligor agreed to pay alimony for less than 10 years, he or she may petition for modification after July 1, 2015
For agreements or modifications of agreements entered into before July 1, 2013:
If the obligor agreed to permanent alimony, he or she can petition for modification after July 1, 2013.
If the obligor agreed to durational alimony of 10 years or more, he or she can petition for modification after July 1, 2014.
If the obligor agreed to durational alimony of between 5 and 10 years, he or she can petition for modification after July 1, 2015
Thus, in the first year after the effective date of the proposed legislation, obligors would have the right to go back and challenge almost all awards of permanent alimony. This is one of the reasons the family law section of the Florida Bar has come out against this proposed legislation.
This is the second year in a row there has been legislation proposed to significantly reduce the circumstances where alimony is required to be paid. This is important legislation since it could impact all individuals who receive or pay alimony.