Governor Scott Vetoes Alimony Reform Bill!!:

With a little more than three hours before the bill dubbed the "Alimony Reform Bill" went into law by default, Governor Rick Scott vetoed the bill.  Besides ending alimony, allowing for retroactive modification of alimony, and creating different rules for what Court's could consider, the bill also had controversial language which created a presumption of 50/50 timesharing for parents with children.  Child advocacy groups challenged the 50/50 portion of the bill claiming that it failed to take into consideration the need to have no presumptions on such an issue and to allow a case by case determination of timesharing schedules based on the best interest of the children.

Rick Scott explained that why he vetoed the bill by saying, "The retroactive adjustment of alimony could result in unfair, unanticipated results. Current Florida law already provides for the adjustment of alimony under the proper circumstances. The law also ensures that spouses who have sacrificed their careers to raise a family do not suffer financial catastrophe upon divorce, and that the lower earning spouse and stay-at-home parent will not be financially punished."

For a link to the finalized version of the bill which was vetoed, click here... or cut and paste the following link

http://www.flsenate.gov/Session/Bill/2013/0718/BillText/e2/PDF

Link to Alimony Time Sharing Bill

Here is a better link to the Alimony and Time Sharing bill which passed the Senate on April 4 and the House on April 18.  For a detailed summary of the bill, see our April 4 post below.  Here is the link to the bill itself.

http://www.flsenate.gov/Session/Bill/2013/0718

SENATE BILL: 718 (ALIMONY, MARITAL ASSETS, 50/50 CHILD TIME-SHARING) a summary!

Roy's Desk

The Smith Family Law Firm, P.A.

815 Orienta Ave, Suite 2050

Altamonte Springs, FL, 32701

www.LessStressDivorce.com

407 790 4800

On April 4, 2013, the Florida Senate passed Senate Bill 718 (click here for a link to the bill).  The House passed the bill on April 18, 2013.  Therefore, minus a veto by Rick Scott (which is unlikely) this bill will become law.  While there have been many editorials on the pros and cons of this bill, the following is a simple recitation of what the bill does without judgment.  Keep in mind that the following does not include commentary on how the bill may or may not be found to be enforceable or constitutional in some of its terms.  In an abundance of caution, and to provide an understanding of the changes this bill will cause, we have drafted the following for educational purposes.  To have your particular issues discussed, please contact a Family Law attorney to provide guidance.

CHILD ISSUES:

            SB. 718 states that EQUAL time-sharing with a minor child by both parents is in the best interest of the child unless the court finds that:

1. A child’s safety, well being, and emotional health would be endangered by equal time-sharing,

2. Clear and convincing evidence of extenuating circumstances,

3. A parent in incarcerated,

4. Distance between parental residences makes it impracticable,

5. A parent does not request 50%,

6. Permanent injunction has been entered or is warranted,

7. Domestic violence has occurred.

            The language regarding timesharing cannot be used as a basis to argue that there has been a substantial change in circumstances.  Put in simpler terms, this portion of the statute must be triggered, for modification purposes, by an independent change in circumstances.

            **This change can greatly effect child support calculations.

ALIMONY CHANGES:

            WHO CAN AVAIL THEMSELVES TO IT, AND IS IT RETROACTIVE??

            The alimony portions of the bill apply to all orders entered after July 1, 2013 AND CAN BE USED, in and of themselves, as a basis for modification of final judgments and orders entered BEFORE July 1, 2013 if a party fits under one of the three categories:

a.     (Alimony not agreed to) Parties may move for modification on or after July 1, 2013 IF their support obligation exceeds 15 years and it was not alimony that was agreed to.

b.     (Alimony was agreed to) Parties may move for modification on or after July 1, 2013, even if alimony was agreed to, if the marriage was 15 or less years and the duration of alimony exceeds the length of the marriage (UNLESS it was expressly non-modifiable).

c.      (Equity catch-all) When parties do not meet one or two above but can prove by clear and convincing evidence that:

1.     Payor did not execute agreement voluntarily,

2.     Agreement was product of fraud, duress, coercion, or overreaching,

3.     Agreement was unconscionable when executed and before execution obligor

i.                was not provided a fair and reasonable disclosure,

ii.              did not waive disclosure,

iii.             did not have or could not have adequate knowledge of property and financial obligations of other party

HOWEVER, even the “catch-all” will not include those who agreed to non-modifiable alimony.

All modifications are presumed to apply retroactively to the date of the filing of the petition for modification unless good cause is given as to why it should not.

            WHEN CAN PARTIES PETITION TO MODIFY?

a.         If a party has an alimony obligation of 15 or more years they may file on or after July 1, 2013.

b.         If a party has an alimony obligation of 8 years to less than 15 years they may file on or after July 1, 2014.

c.          If a party has an alimony obligation of less than 8 years they may file on or after July 1, 2015.

            WHAT ARE THE CHANGES?

                        Types of Alimony:

                                    Permanent alimony has been done away with.  We are left with Bridge the Gap, Rehabilitative, and Durational (the Court may also award a combination of alimonies, however, even when combing alimonies, alimony cannot exceed 40% of payor’s gross income).  There is preference for bridge the gap, followed by rehabilitative alimony preferred over any other form of alimony, including durational.

                        Duration of alimony:

                                    Duration of alimony cannot exceed 50% of length of marriage (calculated from date of marriage to date of filing of petition for dissolution) unless other spouse shows by a preponderance of the evidence why it should be longer.

                        Assets looked to for determining ability to pay:

                                    Non-marital assets cannot only be considered towards ability to pay to the extent they were relied upon by the parties during the marriage.  Social Security retirement benefits may not be imputed.

                        Imputation of income to spouse requesting alimony:

                                    If a party requesting alimony is not employed at the time of the filing of the petition, the amount imputed to that party depends on how long they have been unemployed as follows:

                                    1 year to less than 2 years (80% of prior income)

                                    2 years to less than 3 years (70% of prior income)

                                    3 years to less than 4 years (60% of prior income)

                                    4 years to less than 5 years (50% of prior income)

                                    5 years or more (40% of prior income or minimum wage whichever is higher).

                       

Length of marriage presumptions:

                                    (SHORT) Marriage of 11 years or less:  Rebuttable presumption against alimony.  Preponderance of evidence needs to be met to get bridge the gap or rehabilitative alimony.  In order to get durational alimony a clear and convincing standard must be met.  Not to exceed 25% of gross income of payor (unless party establishes need to exceed)

                                    (MID TERM) Marriage of more than 11 years but less than 20 years.  No presumptions.  Need and ability to pay still needs to be shown.  Not to exceed 35% of gross income of payor (unless party establishes need to exceed).

                                    (LONG TERM) Marriage of 20 years or more.  Presumption for alimony exists.  Not to exceed 38% of gross income of payor (unless party establishes need to exceed).

                        Retirement:

                                    If requirements of retirement are met prior to filing of petition, no need to pay alimony unless there is clear and convincing evidence of ability to pay.  Retirement shall be considered a substantial change in circumstances as a matter of law.

                        Upward and Downward modifications based on increase and decrease of income.

                                    Codifies the case law to some extent by stating that it is permanent change if the decrease or increase is maintained without interruption for a year.

                        Cohabitation and Remarriage:

                                    Alimony recipient’s cohabitation in a supportive relationship does not per se terminate alimony unless it is shown that it reduces the party’s need for alimony.

                                    Alimony paying spouse’s remarriage or cohabitation is not a basis for modification as the new spouse’s income and assets are no longer relevant to modification proceedings except under exceptional circumstances.

RIGHT TO DIVORCE (BIFURCATION) CHANGES:

            In the event the parties cannot reach an agreement, the Court may not enter an order granting dissolution in the first 180 days after a petition for dissolution is filed (if parties reach an agreement divorce can be granted after 20 days of date of filing of petition or sooner in certain circumstances).  If 180 days have passed since the date of the filing of the petition, the Court MAY grant the requested dissolution as long as it retains jurisdiction to decide remaining issues (such as equitable distribution, time-sharing, alimony, etc) and enters temporary orders protecting these issues (especially child issues).  After 365 days form the date of the petition for dissolution the Court shall grant a request for dissolving the marriage.

MARITAL ASSETS:

            Statute now specifically includes the pay down of principal of a note and mortgage secured by non-marital property and a portion of passive appreciation of property as a marital asset.  It also provides a method to calculate the marital portion of the passive appreciation

Use of money and Cussing!! FAMILY LAW UPDATE

Zvida v. Zvida (January 9, 2013) 4^th DCA

            Trial court erred by not making requisite findings, including whether special circumstances were present to require life insurance to secure child support and alimony.  Further, the trial court did not hold an evidentiary hearing as to availability, cost, and ability to pay for life insurance.  It was also error to order that the wife be listed as the beneficiary of life insurance securing child support as it should have been the child.  The court also erred in attributing an account to the husband in the amount of $117,315.00 which was valued at only $3,284.00 at time of trial.  It is error to include in the equitable distribution scheme assets or sums that have been diminished or depleted during the dissolution proceedings unless there is evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court makes a specific finding that the dissipation resulted from intentional misconduct.    Intentional misconduct is demonstrated by evidence that the marital funds were used for one party’s own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.  In this case there was no testimony whatsoever as to how, or on what, the funds were used.

Waddell v. DeLorenzo (December 28, 2012) 5^th DCA

            Neighbor’s cussing and yelling vague threats from a distance were not grounds for entry of a repeat violence injunction.  Court erred in ordering a two year “cooling off period … for the sake of peace in the neighborhood.”

Nov - Dec 2012 Family Law Update!!!

FEDERAL CASES:

AXA Equitable Life Insurance v. Cherry (US Court of Appeals 11^th Circuit)  Nov 9, 2012

            Where MSA clearly stated that “alimony will be secured” by life insurance, former wife only suffered damage of the amount of unpaid alimony following former husband’s death where he had changed beneficiary.  Former Wife was not entitled to the windfall of the complete policy.

FIRST DCA

Therriault v. Therriault (December 10, 2012)

            Trial court abused its discretion by ordering the former husband to maintain $500,000 in life insurance to secure his alimony and child support obligations as the court failed to make specific evidentiary findings as to the availability and cost of insurance and the special circumstances that warranted the security.

Margaretten v. Margaretten (November 16, 2012)

            While there was no dispute as to wife’s need and husband’s ability to pay alimony, the trial court erred in not making a specific finding that no other form of alimony, other than permanent alimony, was fair and reasonable under the circumstances for the parties.

Colley v. Colley (November 16, 2012)

            While there may have been a few issues which were vague in an MSA, and other issues not dealt with in the MSA, this was not grounds to invalidate the remainder of the MSA by the trial court.  The portions agreed to should have been adopted, and the remaining unaddressed or vague issues could still be litigated.

Gray v. Gray (December 17, 2012)

            Trial court’s order was reversed and remanded as there were no findings to support wife’s need for alimony of $30,000.00 a month.  Further, while it is in a trial court’s discretion not to impute income to a spouse, the court’s order must establish that it considered the statutory factors in deciding not to do so.  In its first judgment, the trial court stated that it was in the best interest of the children for the mother to remain at home.  In its revised judgment the trial court found that husband did not provide competent and substantial evidence that wife was employable.  In doing so the trial court rejected the opinion of husband’s expert but did not provide an explanation for the rejection.  In both cases, the trial court abused its discretion and therefore the matter was remanded for further findings.

Mayfield v. Mayfield (December 17, 2012)

            In a modification proceeding, trial court erred by providing husband a credit towards future child support for additional voluntary payments made for the child in the past.  Further, the trial court erred in not modifying child support retroactively to date of petition for modification.  However, the trial court did not err in refusing to alter the responsibility for non-covered medical expenses to a pro-rata basis as the parties had previously agreed to split these expenses 50/50.

SECOND DCA

Blackburn v. Blackburn (November 30, 2012)

            Magistrate’s recommendations, which were adopted by trial court , were in error.  While the determination of the timesharing schedule appeared to be supported by detailed analysis, language that the timesharing schedule could be modified in the future based solely on the best interest of the children, as opposed to a substantial change in circumstances, was in error. (Magistrate had apparently created this distinction because Mother and Father had not yet settled into a stable post dissolution schedule and living arrangements).   It was also error to not address the holiday time-sharing schedule.

Arena v. Arena (January 4, 2013)

            Wife appealed award of only 60% of her attorney’s fees to be paid by husband (as opposed to all of fees).  The case was remanded as the trial court had utterly failed to give an explanation as to the partial award.

Hammesfahr v. Hammesfhar (November 28, 2012)

            The trial court erred by failing to address former husband’s request to modify child support based on one of his children reaching the age of majority.  However, denial of former husband’s request to modify alimony was proper as there was competent evidence to show that the reduction was due to voluntary underemployment.  Again, “the clean hands doctrine prevents a court from relieving a party of his support obligation when the decrease in financial ability to pay is brought about by that party’s voluntary acts of, for example, permitting a thriving business to be closed down and making no effort to find other employment, or by willfully divesting himself/herself of the ability to pay.”

Perez v. Perez (November 9, 2012)

            Trial court erred on several points with regard to the award of attorney’s fees to wife (in a very contentious and overly-litigated case).  First, there was no analysis of need and ability to pay.  Second, there was no explanation as to why husband was only responsible for a certain portion of wife’s fee.  Third, to the extent fees were being awarded for litigation misconduct, the order failed to address this issue at all.  Finally, while a payment plan was ordered, there was no explanation as to why the particular payment plan was selected.

Bikowitz v. Bikowitz (November 28, 2012)

            It was not error for trial court to deem payment made by husband’s company which was, in part, consideration for non-compete provision and an obligation to furnish consulting services to his company’s buyer for a fixed time as marital as neither party provided evidence from which the trial court could have separately valued the non-marital aspect of the payment.  However, as his employment began during the marriage and extended until after the filing of the petition, the trial court on remand had to apply an analysis as to what services were provided after the petition to carve out a non-marital component.  Additionally, trial court erred in placing a loan, which had no evidence that it would ever be paid back, as an asset for husband.  Finally, bridge the gap alimony award was reversed as it exceeded wife’s need.

Weissman v. Weissman (December 12, 2012)

            When a trial court modifies a parent’s visitation without notice and an opportunity to be heard, a parent may seek certiorari review on the basis that the court departed from the essential requirements of law.  In this matter, while the trial court’s order to place the minor children in a treatment program was not in error, as former husband had notice these issues were being considered by trial judge, there were no extraordinary circumstances presented which justified preventing visitation or contact for ninety days upon the family’s return from the program without first affording former husband notice and an opportunity to be heard.

           

THIRD DCA

Sueiro v. Gallardo (December 21, 2012)

            Trial court’s order modifying timesharing based on “parental alienation” was overturned.  While a finding of parental alienation can justify a post dissolution modification of timesharing, it must be based on competent, substantial evidence.  In this case the expert’s testimony revealed that the mother indeed encouraged contact.  It was the eldest child who rejected father and attempted to get younger children to reject father.  Further, the expert testified that immediate change in time sharing would not be in the best interest of the children, as he preferred a gradual change.  Therefore, the order for an immediate change was not supported by the evidence.

           

FOURTH DCA

Morrell v. Morrell (December 19, 2012)

            Former husband argued that finding of contempt for failure to maintain life insurance was improper as the requirement to have life insurance was not to secure alimony or child support but was instead an element of equitable distribution.  The appellate court rejected this and found that the insurance was in the nature of support.  However, the appellate court also indicated that since it was in the nature of support it was modifiable.

Giorlando v. Giorlando (December 19, 2012)

            Agreed to imputed income referenced in the MSA has to be taken into account in determining whether to award temporary fees.  While this appears to conflict with the 3^rd DCA in Schmachtenbeg, the 4^th DCA indicated that the instant case was distinguishable as , in the instant case, former wife was seeking modification and therefore she shouldered the burden of establishing why the agreed upon imputed income should not have been considered.

Miller v. Miller (November 21, 2012)

            Attorney fees can only derive from a statutory basis or an agreement.  In this matter, the MSA indicated that fees would be triggered when one party seeks to enforce an MSA.  However, enforcement was not sought, instead it was a modification.  As such, trial court erred in awarding fees under the “prevailing party” provision of the MSA.

FIFTH DCA

Liberatore v. Liberatore (December 14, 2012)

            Trial court’s allocation to wife of depleted assets that she used during the pendency of the dissolution proceedings to pay her attorney was in error as there was no finding of misconduct.

Gunn v. Gunn (November 30, 2012)

            Trial court erred in focusing only on former husband’s ability to pay attorney’s fees based on his disposition of an asset following modification proceedings.  The court should have considered all assets and sources of income of both parties and not merely one isolated factor.

           

RECENT RECUSSAL CASES:

Griffith v. Haworth (US District Court Middle District)  Nov 20, 2012

            Attempt of litigant to file a lawsuit against, or add judge as Defendant, was not grounds to recuse judge.

Farr v. State (Florida Supreme Court 2012)

            The fact that a judge has previously made adverse rulings is not adequate grounds for recusal. (citing Jackson v. State, 599 So.2d 103 (Fla. 1992)).

Braddy v. State (37 Fla. L. Weekly. Supp 703)

            Judge’s comments to Braddy, even if exasperated or sharply spoken, do not require disqualification.  Citing prior case law “expressions of impatience, dissatisfaction, annoyance, and even anger do not establish bias or partiality.”  Further, a judge’s statement that claims were “bogus”, “a sham”, and “abject whining” did not warrant recusal.