Numerous bills passed and became effective July 1, 2023, that materially altered family law in Florida. One of our partners, Elisha Roy, was integral in drafting, providing language, and working with lobbyists to effectuate those changes. Read more below:
With the passage of Florida House Bill 1301 and Senate Bill 1416, there are significant changes to the practice of family law in Florida that you must be aware of to properly represent your clients.
There is now an equal timesharing presumption in Florida, but the Court must make written findings as to why that schedule is in the children’s best interests and can deviate from equal if, by a preponderance of the evidence, the factors provide reasons why. Of import, on modifications, the requirement of the substantial change being “unanticipated” has been removed. This is to ensure the line of cases that have recently come out of the appellate courts not allowing modifications when there has been a POSITIVE change that would warrant a basis to allow a once-limited timesharing parent to expand their time. The goal of the changes to the parenting statute is to further encourage both parents to be actively involved in their children’s lives. In numerous areas of the state, this “transition” to equal timesharing will likely be less of an adjustment than others, as judges in many circuits have been doing something close to equal for some time, as the prior iteration of the statute made it clear there should be no presumption in favor of either parent – arguably meaning the court had to begin with an assumption that each parent had equal.
Most of the major changes as a result of Senate Bill 1416 were to alimony. I’ve already addressed the changes to 61.08 in a separate article. This is to touch on the highlights of changes to 61.14, regarding modifications of alimony awards. Please note, unlike the changes to 61.08 that apply to all actions pending or filed as of July 1, the changes to 61.14 ONLY APPLY TO CASES FILED AFTER JULY 1, 2023.
First, the new 61.14 attempts to put more teeth into the modification of alimony based on a supportive relationship. Anyone who regularly practices in this arena knows that as formerly written, the supportive relationship section was easy to manipulate to avoid a modification or a termination. Previously, if a supportive relationship was found the court still had discretion to choose not to reduce or terminate alimony, as the statute read the court “may,” but the statute is now a “must” provision. The new version provides a one-year “look back” time, wherein if the Court finds that the supportive relationship DID exist during that time frame, even if it has since ended, a modification for that time period is feasible. There is a burden shift for the recipient to provide, by a preponderance of evidence, that the supportive relationship did not exist. The Court, is, of course, required to make written findings regarding the factors and the existence of the relationship. The factors have been altered slightly as well, again, with the hope of giving a little more tooth to this modification basis than under previous versions of the statute. The factor changes are summarized as follows:
* Strikes “in a permanent place of abode” from factor (b).
* Factor (c) includes consideration of the acquisition or maintenance of a joint bank or other financial accounts.
* Factor (d) is expanded to include consideration of the extent to which the obligee and other person supported each other, including a consideration of the payment of the other’s debts, expenses, or liabilities.
* Factor (g) is expanded to include consideration of the extent to which the obligee and other person worked together to acquire any assets or to enhance the value of any assets.
* Factor (i) is expanded to include consideration of implied agreements and financial support.
* Factor (j) is expanded to include information regarding the obligor’s payment of alimony as well as any arrearages.
* Factor (k) is expanded to include the consideration of not only support provided to the other parties' children but support provided to their family as well.
It would seem that many of these changes, working together, may provide relief to those who try and circumvent the modification by “breaking up” when the modification action is filed or by being careful about finances and living together. Removal of permanent place of abode and expansion of the other factors will hopefully prevent the manipulation of alimony and the law on modification.
A long time coming in the other changes to 61.14 is a codification of the ability to modify alimony because of retirement as originally laid out in Pimm v. Pimm. Sit back as there is quite a bit to cover here. And remember, this does not apply to pending cases, this only applies to cases filed after July 1, 2023, effective date of the law.
Most who practice regularly in this area are well aware that the retirement of the obligor is considered a substantial change in circumstances to warrant a modification or termination of alimony. No other substantial change is necessary if the obligor has retired. Under the new 61.14, the obligor can see the modification up to 6 months BEFORE retirement, so long as there is a reasonable anticipation of actual retirement. Understand, however, retirement age is as specifically defined by the Social Security Administration OR the customary age for retirement in a specific profession. (i.e. police and firefighters). The court must first determine if the retirement will reduce the obligor’s ability to pay, and assuming that is provided, the burden shifts to the obligee to attempt to prove why the support should not be modified or terminated. The court is required to make specific findings of fact regarding the obligor’s retirement based on factors such as the age of the obligor and the type of work he or she did. The court must also review and make findings regarding the obligor’s motivation to retire and likelihood to return to work – from a practice perspective this is an interesting factor as it opens arguments regarding someone retiring young and obtaining a second career, staying on as a “consultant” with a company after retiring, etc. There are quite a few factors regarding all forms of income available to both the obligor and obligee – including what each party did with assets received during the divorce, social security benefits, income earning ability, etc. From a practice tip perspective, pay close attention to each factor, as there are creative arguments for and against modification hidden in many.
At the conclusion of all evidence and testimony, the court MUST make written findings of fact regarding the factors in the statute no matter if the request for modification is being granted or denied, confirming, reducing, or terminating the obligor's alimony obligation.
For new alimony cases being filed and/or decided after July 1, I would strongly recommend arguing about retirement age if it would be appropriate for the length of an alimony award under the guidelines. As indicated in my previous article regarding the guidelines, they are just that… not a required length, but a “not to exceed” length, however, arguing that someone who is 55 and could have to make alimony payments up to 20 years under the new guidelines – it would definitely make sense to argue that alimony should be 12 years – ending at the obligor’s retirement age. There are numerous creative arguments for and against alimony and modification of same under these revisions to 61.08 and 61.14.
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