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:
I started doing legislative work with the Family Law Section of the Florida Bar in 2004. It led me to Tallahassee numerous times, but in the beginning, it was working on a redraft of 61.13 in hopes of making it abundantly clear that the tender years doctrine was gone and that truly both parents should be treated the same when coming to court on timesharing related issues. My first time presenting in front of the Florida Legislature was the 2007 session and while the bill was only about parenting, many of the questions and comments that followed my presentation were about alimony and “indentured servitude.” This began what would turn into a 16-year back and forth with many stakeholders around the State: lawyers, legislators, lobbyists, and both payors and recipients of alimony. While an amazing fix occurred in 2010 with the creation of durational alimony, the 2023 session hopefully has ended this 16-year saga with the Governor’s signature on Senate Bill 1416.
There are a lot of changes to alimony in Florida as a result of the passage of this Bill, but much of that truly codifies the application of existing case law. The goal was to balance the needs of people who married in the early to mid-70s, 80s, and 90s with the needs of a different generation of people married in more recent years. The hope was to consider the needs of families who made decisions for one parent to stay home with the reality of the rise of families with both parents working. This article serves to highlight some of the major changes.
It is imperative to note that the changes to 61.08 apply “To all initial petitions for dissolution of marriage or support unconnected with dissolution of marriage pending or filed after July 1, 2023.”This means if you had an initial dissolution of marriage filed PRIOR to and still pending on July 1, 2023, the new statute applies. It is critical that you review the statute in detail and make any necessary arguments regarding the proper amount of alimony, length of time, and present facts and evidence necessary if you are seeking to extend the length of the alimony award.
Much of what appears to be changed are actually things that already existed in the alimony statute, like the requirement to make findings of facts specifically to the factors regarding the basis of awarding alimony, the various forms or combinations thereof. The most important of those things, in my opinion, is notwithstanding new guidelines for the court to use for both length of an alimony award and amount, the NEED and ability to pay component is still the primary consideration and the burden of proving need and ability to pay still falls on the requesting spouse. This means that notwithstanding the new guidelines, no need or no ability to pay (or both), then no alimony. It also means that if the guideline amount (discussed more below) is higher than the recipient spouse’s need, it is the need number that matters NOT the guidelines. The court is going to have to make written findings on the lack of alimony for failure to show need and ability to pay. It should go without saying, that there must still be findings of fact regarding the type of alimony awarded, the length, and the amount.
There are revisions to the factors that the court must consider in determining an alimony award, but a close comparison with previous versions of the alimony statute will make it clear much is still the same. Of note, while the concept of the parties' standard of living is still considered, the court can now also consider the anticipated needs and necessities of each spouse AFTER the entry of the Final Judgment. An interesting addition, which I believe if argued correctly could definitively benefit both the recipient and the payor is factor (e) where the court is to consider the ability of either party to obtain the necessary skills or education to become self-supporting or to continue to contribute to his or her-self-support prior to the termination of the support award. Another addition, arguably inherent in the previous version under the “anything else to do equity and justice,” is permitting the court to consider an existing support relationship or reasonable retirement in awarding alimony. A practice tip, which will be discussed in more detail below, but definitely argue retirement age when dealing with the length of alimony, as the time frame guideline is something the court cannot exceed (absent exceptional circumstances) but can certainly go below.
The 2023 statute redefines the lengths of marriage, a short-term marriage is now up to 10 years in duration, moderate between 10 and 20, and long-term anything 20 years or more. The big headline of this statute is the removal of permanent alimony. However, the permanency of alimony in Florida has always been suspect, given that it can be modified and/or terminated based on retirement or some other substantial change in circumstance. So, it is true that permanent alimony is no longer in existence in Florida for NEW alimony awards, however, with the ability to exceed the cap on duration, a court could certainly award alimony for a set duration that is close to the same amount of time. I feel certain this will begin to show itself in the appellate courts as more orders under the new statute are entered.
Any marriage of under 3 years will not be considered for durational alimony, however, bridge the gap is still available not to exceed 2 years. New caveats on rehabilitative alimony are also included which cap the duration at 5 years and authorizes the modification or termination of rehabilitative alimony upon completion of the rehabilitative alimony plan.
So, the real heart of the coconut…. What does the new law really do regarding “guidelines?”
Generally speaking, most cases are going to see awards of durational alimony. There are guidelines for length of the award… BUT please remember, the court does not HAVE TO GIVE THE FULL LENGTH. Part of the attorney’s job under this statute is to use the factors to explain to the court what the proper length of the award SHOULD be… and that does not mean the 50% 60% or 75% as provided. Also, there are likely exceptional circumstances that would warrant exceeding the guideline length, so honing those arguments is necessary if you are going to ask the court to do so. Practice tips:
* If you are dealing with an alimony case where the guideline length would go beyond the retirement age of the payor spouse, use that as a basis to ask the court to go below the guideline amount
* If there are issues with the recipient spouse working while minor children are in school, because alimony is not taxable and deductible, having alimony terminate with children no longer needing support is likely another good argument for a length below the guideline. The court cannot exceed this length but under exceptional circumstances
* Really know and evaluate the exceptional circumstance factors and figure out if your case has facts and circumstances that can be proven to support going beyond the guidelines.
Those factors are:
1. The obligee’s age and employability limit their ability for self-support either in whole or in part.
2. The obligee’s available financial resources limit their ability for self-support either in whole or in part.
3. The obligee is mentally or physically disabled or has been diagnosed with a mental or physical condition that has or will render him/her incapable of self-support in whole or in part.
4. The obligee is the caregiver to a mentally or physically disabled child, whether or not the child has attained the age of majority, who is common to the parties. The extension terminates when the child no longer requires caregiving or the death of the child.
In an effort to codify “rules of thumb” and what was being seen around the state with awards of alimony, the new 61.08 provides the court guidelines to calculate the amount of durational alimony. Please note, the guidelines ONLY apply to durational alimony. This means your request for bridge the gap can certainly exceed the guidelines as can rehabilitative alimony. Also, recall, the court, with findings, can combine forms of alimony and an excellent offense (and defense) in alimony is to present a rehabilitative plan with a reduced amount of durational once the recipient is rehabilitated. The court can then exceed the guidelines during the initial years of rehabilitative alimony, just be sure to have a clear plan laid out so the court can make the necessary written findings.
The amount of alimony CANNOT exceed the reasonable need of the recipient spouse or 35% of the differentials between the NET INCOMES of the parties, whichever amount is less. As indicated above, if the need is less than 35%, the need amount is the amount. Also, the court does not HAVE TO AWARD 35%. This means you can argue for a lesser amount based on the factors.
Important, this version of 61.08 refers the court to the child support statute [61.30(2) and (3)] to determine net income, but obviously it excludes spousal support paid pursuant to a court order in the existing action between the parties.
While there are certainly more nuances contained with this new alimony statute, I hope this highlights the major changes for you and provides some tips for implementing it successfully into your practice.