Thursday, April 18, 2013
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.
Thursday, April 4, 2013
The Smith Family Law Firm, P.A.
815 Orienta Ave, Suite 2050
Altamonte Springs, FL, 32701
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.
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.
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).
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.
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