On June 30, 2023, Governor DeSantis capped off an active legislative season by signing SB 1416 (the “Alimony Bill”) into law with an effective date of July 1, 2023, reforming alimony in Florida in several important ways. The signing concludes a more than 10-year effort that included multiple vetoes of prior iterations of the bill.
Specifically, the new law applies to all initial proceedings for dissolution of marriage pending on or filed after July 1, 2023. Therefore, most of the changes do not create an independent basis for modification of an existing alimony obligation; however, the legislature has specifically changed how the courts are to analyze retirement and financially supportive relationships in the context of modification of alimony. These specific changes are addressed below.
Earlier, on June 28, 2023, the Governor signed into law HB 1301 (the “Parenting Bill”), creating a rebuttable presumption that 50/50 timesharing is in the best interest of a minor child.
These two bills were at least the fourth and fifth significant new laws affecting Florida’s families, after the Governor earlier signed bills amending the establishment of paternity, support for adult dependent children, and the domestic violence factors the court must consider when ordering a parenting plan. While we are pleased to provide consultation about how each new law may alter your rights and responsibilities, this Part I will focus primarily on the Alimony Bill.
Stay tuned for additional installments of our Legislative Changes Series to learn more about how these changes may affect you.
The Alimony Bill
The Alimony Bill is comprised of several distinct components that will impact eligibility for alimony from an initial proceeding for dissolution of marriage through a proceeding to modify or eliminate alimony previously awarded in a final judgment.
The Alimony Bill revised Florida Statutes 61.08 (alimony), 61.14 (enforcement and modification of support, maintenance, or alimony agreements or orders), and 61.13 (support of children; parenting and time-sharing; powers of court). We will touch briefly on these statutory changes in this article and expand in future editions of this series.
Changes to F.S. 61.08
Elimination of Permanent Alimony Going Forward
Under the Alimony Bill, permanent alimony awards going forward is eliminated. It leaves in place other existing forms of alimony – temporary, bridge-the-gap, rehabilitative, and durational, which may be awarded either individually or in combination. The court can order these types of alimony to be paid periodically or in lump sum payments to provide economic assistance sufficient to allow the recipient to achieve self-support.
Those going through a divorce with a trial or settlement agreement concluding after July 1, 2023, who would have been eligible for permanent alimony will likely now receive durational alimony calculated under a formula, which is explained in greater detail below. While this formula limits the length and amount of a durational alimony award, it may be possible to extend the length of alimony due to exceptional circumstances and to exceed the cap amount by combining durational with other authorized forms of alimony.
Proponents of the Alimony Bill point out that “permanent” alimony was often not permanent, as the payor’s retirement has been an acceptable basis to modify or even possibly eliminate an alimony obligation since Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992). Many permanent alimony recipients ultimately faced petitions to modify permanent alimony when their spouse reached retirement. Now, all parties who pay or receive durational alimony awards on or after July 1, 2023, must incorporate the statutory changes when applying for or defending against retirement-based modification.
Findings of Fact
Under the Alimony Bill, the court shall make written findings of fact regarding the basis for awarding a form or any combination of forms of alimony, including the alimony and the time for which the alimony is awarded.
The court must first make a specific, factual finding as to whether the party requesting alimony has an actual need for it and whether the other party
When determining an alimony claim, the court must include written findings of fact relative to the factors discussed below supporting an award or denial of alimony, unless the denial is based upon a failure to establish a need for or ability to pay alimony. However, in that case, the court must make written findings of fact as to the lack of need or lack of ability to pay in denying a request for alimony.
Burden of Proof
Under the Alimony Bill, the burden of proof is on the party requesting alimony to prove their need for alimony and the other party’s ability to pay alimony.
Amended Factors to be Considered in Determining Alimony
Under the Alimony Bill, if the court finds that the party seeking support, maintenance, or alimony has a need for it and that the other party c
- (a) The standard of living established during the marriage and the anticipated needs and necessities of life for each party after the entry of the final judgment.
- (b) The duration of the marriage.
- (c) The age, physical, mental, and emotional condition of each party, including whether either party is physically or mentally disabled and the resulting impact on either the obligee’s ability to provide for his or her own needs or the obligor’s ability to pay alimony and whether such conditions are expected to be temporary or permanent.
- (d) The resources and income of each party, including the income generated from both nonmarital and marital assets.
- (e) The earning capacities, educational levels, vocational skills, and employability of the parties, including the ability of either party to obtain the skills or education to become self-supporting or to contribute to his or her self-support
- (f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
- (g) The responsibilities each party will have
- Any other factor necessary for equity and justice between the parties, which shall be specifically identified in the written findings of fact. This may include a finding of a supportive relationship as provided for in s. 61.14(1)(b) or a reasonable retirement as provided for in s. 61.14(1)(c)1.
These changes impact the court’s determination of an appropriate alimony award in several important ways: (1) by acknowledging that needs and necessities of life may be different after divorce due to changed circumstances, including, for example, due to changes to housing; (2) by including consideration of the mental condition of each party and the resulting financial impact; (3) by explicitly considering income generated to each party from marital and non-marital assets distributed in a divorce; (4) by requiring consideration of the ability of either party to obtain skills to become self-supporting prior to the termination of an alimony award, thus possibly promoting awards which taper off over time; (5) by acknowledging the extra responsibility associated with caring for a child common to the parties with a mental or physical disability; and (6) by considering whether a supportive relationship exists or existed within the previous 365 days.
Many of these “new” factors were already considered by courts when determining appropriate alimony prior to passage of the Alimony Bill. The new law codifies these considerations, and it places greater emphasis on a reduced lifestyle post-divorce and on the payee ultimately achieving self-support, while maintaining thoughtful consideration of unique circumstances of both the payor and the payee.
The latter change notably permits the court to consider, for the first time, the existence of a financially supportive relationship when determining an initial alimony award, rather than merely upon
Amendment of Classification of Marriages by Length
Under the Alimony Bill, the court must consider revised timeframes in determining the appropriate length for an alimony award.
- Short-Term Marriage – A marriage
- Moderate-Term Marriage – A marriage having a duration between 10 and 20 years
- Long-Term Marriage – A marriage
Prohibition Against Durational Alimony in Marriages Less than 3 Years
The Alimony Bill does not permit an award of durational alimony after a marriage of less than 3 years. However, parties to these shorter marriages may still be eligible for an award of temporary, rehabilitative, and/or bridge-the-gap alimony, all of which may be awarded individually or in combination.
Temporary alimony
Rehabilitative alimony requires a payee to comply with a specific rehabilitative plan, which is typically designed to enable the recipient to acquire necessary education, employment training, or reemployment assistance, and it may be awarded for a term of no more than 5 years.
Bridge-the-gap alimony is intended to help a payee transition to self-support and may not exceed 2 years.
Creation of Presumptive Cap for Length of Alimony
Under the Alimony Bill, an award of durational alimony may not exceed 50 percent of the length of a short-term marriage, 60 percent of the length of a moderate-term marriage, or 75 percent of the length of a long-term marriage. Under exceptional circumstances, however, the court may extend the term of durational alimony by
Exceptions to Statutory Cap
Under the Alimony Bill, the court may exceed the presumptive caps referenced above based on
- The extent to which the obligee’s age and employability limit the obligee’s ability for self-support, either in whole or in part.
- The extent to which the obligee’s available financial resources limit the obligee’s ability for self-support, either in whole or in part.
- The extent to which the obligee is mentally or physically disabled or has been diagnosed with a mental or physical condition that has rendered, or will render, him or her incapable of self-support, either in whole or in part.
- The extent to which 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. Any extension terminates upon the child no longer requiring caregiving by the obligee, or upon death of the child, unless one of the other factors in this paragraph apply.
Creation of Statutory Cap for Amount of Alimony
Under the Alimony Bill, the amount of durational alimony is the amount determined to be the recipient’s “reasonable need”, or an amount not to exceed 35 percent of the difference between the parties’ respective net incomes, whichever amount is less. This change places a greater emphasis on the precise incomes of the parties, as 35% of the net difference in the parties’ respective monthly net incomes is the maximum amount of durational alimony permitted.
When defending against a request for an alimony award under the Alimony Bill, the possible payor (and/or their legal team)
1. Salary or wages.
2. Bonuses, commissions, allowances, overtime, tips, and other similar payments.
3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income.
4. Disability benefits.
5. All workers’ compensation benefits and settlements.
6. Reemployment assistance or unemployment compensation.
7. Pension, retirement, or annuity payments.
8. Social security benefits.
9. Spousal support received from a previous marriage or court ordered in the marriage before the court.
10. Interest and dividends.
11. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income.
12. Income from royalties, trusts, or estates.
13. Reimbursed expenses or in-kind payments
14. Gains derived from dealings in property, unless the gain is nonrecurring.
Changes to F.S. 61.14
Amendment of Process to Apply for Reduction or Termination of Alimony Due to Retirement
The Alimony Bill streamlines the process by which a payor may petition the court for a modification or elimination on their alimony payment. For example, the new statute allows the payor to petition the court in “reasonable anticipation of retirement”, but not more than 6 months prior to retirement. Given the customary length of contested proceedings, this will enable reductions in awards to coincide more closely with actual retirement dates.
Other changes in this area include consideration of one’s profession in determining what is a reasonable retirement age, consideration of the motive of the retiree, the likelihood of re-employment, and the unique circumstances of the payee, including the ability to contribute towards their own basic needs and the economic impact of the termination or reduction.
Amendment of Analysis of Finding of Supportive Relationship
Under the Alimony Bill, the court must reduce or terminate an award of alimony upon specific written findings by the court that a supportive relationship has existed between the recipient and a person who is not related by consanguinity or affinity. Joint residency is no longer a prerequisite to a finding of a supportive relationship.
The general shift is away from an emphasis on cohabitation as a prerequisite to a supportive relationship. The Alimony Bill also now allows the court to look backward to determine if a supportive financial relationship existed within the prior 365 days.
If a supportive financial relationship is proven by a preponderance of the evidence to exist or have existed within the past 365 days, the burden then shifts to the payee to prove by a preponderance of the evidence why the alimony award should not be reduced or eliminated, based on consideration of
a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife,” or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.
b. The time that the obligee has resided with the other person.
c. The extent to which the obligee and the other person have pooled their assets or income, acquired or maintained a joint bank account or other financial accounts, or otherwise exhibited financial interdependence.
d. The extent to which the obligee or the other person has financially supported the other, in whole or in part, including payment of the other's debts, expenses, or liabilities.
e. The extent to which the obligee or the other person has performed valuable services for the other.
f. The extent to which the obligee or the other person has performed valuable services for the other's business entity or employer.
g. The extent to which the obligee and the other person have worked together to acquire any assets or to enhance the value of any assets.
h. The extent to which the obligee and the other person have jointly contributed to the purchase of any real or personal property.
i. The extent to which the obligee and the other person have an express or implied agreement regarding property sharing or financial support.
j. The extent to which the obligor has paid the existing alimony award or failed to do so and the existence and amount of any arrearage.
k. The extent to which the obligee and the other person have provided support to the children or other family members of one another, regardless of any legal duty to do so.
Payees defending against a claim of a supportive relationship may argue that the relationship ended, that the financial support was minimal or non-recurring, or that the support did not