As published in the December 27, 2016 issue of Daily Business Review's Family Law section.
We've just endured a contentious election. What's left to debate? In Florida, alimony -- specifically so-called permanent alimony -- likely will be a focus of discussion by state lawmakers once again.
Yes, the Legislature did pass an alimony reform bill, but Gov. Rick Scott vetoed reforms for a second time. The governor cited a mandatory 50-50 child timesharing clause that was tacked on during the legislative debate as the primary reason he couldn't support the bill.
As a result, the family law section of the Florida Bar may introduce a new alimony bill during Florida's next legislative session.
Why? The state's current divorce laws allow for so much discretion that similar-situation divorces can -- and often do -- result in widely differing alimony awards. Proponents believe that alimony reform would take much of the unexpected out of the equation, providing more predictability to divorcing couples during this particularly sensitive time of their lives.
The changes also would provide more continuity, enabling attorneys and couples to negotiate in good faith.
However, among the primary topics of debate is the belief that any new legislation would eliminate permanent alimony. Many recipients, or potential recipients, do not want to see that happen, fearing they could be left financially strapped at some point post-divorce.
Let me clarify a few points and perhaps put some concerns to rest.
First, while the phrase permanent alimony might be struck from a new bill, in actuality the essence of permanent alimony might very well remain in certain cases.
Current Florida law leans toward awarding permanent periodic alimony only upon the dissolution of a long-term marriage lasting 17 years or longer. It tends to disfavor permanent alimony for moderate or short-term marriages unless there is clear and convincing evidence of need or exceptional circumstances justifying it.
A new bill would put into place a prescribed set of guidelines so that all parties can expect a defined range of alimony awards during the dissolution of marriages of similar length and circumstances. Presumptive alimony awards would be determined by formulas that take into account the duration of the marriage and difference between each party's gross income.
In the case of long-term marriages -- those 17 years or longer -- the formulas being proposed in certain cases would carry alimony through to retirement when Social Security kicks in, effectively resulting in the same impact as permanent alimony today. Under current law, "permanent" does not necessarily mean permanent. Upon retirement age, payors can seek to modify or eliminate their alimony obligation based on this change in their circumstances.
It's very possible the bill's authors may settle on formulas that provide a presumptive low and high range for alimony awards. On the low end, multiply 0.015 times the years of marriage times the difference between the parties' monthly gross incomes. At the high end, use 0.020 as the multiplier. There also would be guidelines for the number of years alimony is to be paid, ranging from 25 percent to 75 percent of the length of the marriage.
The legislation should create order in divorce cases with no wild swings in alimony payments, although individual circumstances still may produce individualized judgments. Courts still could award alimony outside the presumptive amount -- but only if it issues written findings that the prescribed range is inadequate after all factors are taken into account.
Special circumstances may demand leeway, but on average the attorneys, parties and judges will all have the expectation that alimony will fall within a certain range. No one should feel blindsided, which is a good outcome during what is often a very distressing time.
It's also important to note that any proposed legislation would not be retroactive. For those who are currently paying or receiving permanent alimony, a new law would not change that.
And time-sharing? Don't look for that to be part of any new legislation. Time-sharing is a complex and controversial issue that simply doesn't belong in an alimony bill. That said, there's no guarantee a lawmaker won't add a time-sharing provision onto the bill, recreating last year's legislative snafu.
Hopefully, lawmakers will agree this time around. And proponents of permanent alimony should not necessarily worry. It could be gone in name but not always in effect and spirit.