Divorce and Alimony changes, Update on Senate Bill 748 & House Bill 549

Everyone needs to get out there and contact their local senate and house representative, as well as the sponsors of this bill to show their opposition. I just received notification that Senate Bill 748 is on the Committee Agenda for 01/31/12 (which means that House Bill 549 won’t be far behind). These bills are not going to die on their own! Please take the extra time to call and/or email your local representative!

If these bills go through, alimony and divorce law will be gutted, including many of the existing awards. Women may be forced to stay in abusive and adulterous relationships, just because they chose to be a full time Mom and Wife instead of pursuing a career. If these bills pass, many women (who would otherwise be able to have some support options) will be left destitute, homeless, on welfare and on other public assistance, instead of their Husband’s being required to continue to support them (which costs us taxpapers money!!).

The rationale behind alimony is that the Husband would not have been able to pursue his career, (travel for his job in order to obtain promotions, work the long hours necessary to obtain promotions) and still have children that were well cared for and involved with school and other extracurricular activities, a clean home, and breakfast, lunch and dinner prepared, his laundry done, etc. etc., but for the fact that he had a stay at home Wife whose full time job was managing the house, taking care of the children and taking care of her Husband’s needs. As a result of their choices, the Husband now earns a great living, whereas the Wife is unable to hold much more than a minimum wage job, if that.

Therefore, in the event of divorce after a long term marriage, Husband should be required to continue to give some portion of his earnings to Wife so that she can live without being on public assistance, and possibly go back to school or learn some sort of job skill so that she can become self supporting in the future. Of course, if she’s 50 years old at the time of the divorce and has never worked a day in her life, then the likelihood of ever becoming self supporting is minimal.

Please contact your local representatives, as well as the sponsors of these bills.

You can find your florida house representative through the following link:

http://www.myfloridahouse.gov/sections/representatives/myrepresentative.aspx

You can find your florida senator through the following link:

http://www.flsenate.gov/senators/find

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My answers to various legal questions

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New Proposed Divorce and Alimony Legislation – Senate Bill 748 and House Bill 549

There are currently two pending bills (one in the Florida House and one in the Florida Senate) that will drastically effect divorce proceedings in the State of Florida, including those divorce decrees that have already been entered, if there is alimony involved as one of the issues in the divorce.

As a brief summary of the proposed changes to current Divorce and Alimony laws:

They’re proposing capping alimony at only 20% of the payors net income and also taking out consideration of adultery. Limiting the amount to such a low figure and removing the consideration of adultery could force a dependent spouse to stay in an abusive, adulturous marriage with no options! They’re also trying to abolish many of the factors to be considered, such as standard of living, and limiting financial resources that are considered in determining a party’s ability to pay alimony only to those assets and liabiltiies acquired during the marriage and income from marital assets. So, if someone is about to receive a large inheritance, they had better file for divorce QUICK!!

They’re also trying to increase the definition of long term marriage to 20 or more years (currently 17 years), make bridge the gap alimony modifiable, eliminate durational alimony for marriages of less than 7 years (short term), and reduce the length of durational alimony to no more than 50% of the length of a moderate term marriage (7 to 20 years) or long term marriage. They’re also trying to abolish permanent periodic alimony, and instead call it “long term” alimony which cannot last for longer than 60% of the long term (20 or more year) marriage and only make it awardable in a long term marriage.

Also, even with the above limitations, they are additionally trying to make alimony automatically terminate once the payor reaches retirement age, regardless of whether they continue to work and have the ability to pay (and regardless of the receivers continued need). Currently, retirement can potentially be grounds for reduction of an ongoing alimony obligation, but it all depends on whether there is a continued ability to pay and/or genuine need.

And this following proposal would really create a flood of new litigation. They’re also wanting to make the amendment to the statute in and of itself consitute a substantial change in circumstances that warrants a modification (which will create a bunch of new business at least!). While there are a few limitations to this, nearly any current alimony award would be modifiable if it did not comport with the amended statute!

Finally, last but not least, they are proposing to change the definition of “supportive relationship” to basically defining it as cohabitating with someone for three or more months in a common household and there being an economic benefit to both parties, thereby getting rid of nearly all of the current consideration factors in determining a supportive relationship. So, would the supportive relationship definition (as proposed) include an adult child that remains in the household and helps out with bills? or someone renting a room in the household? While I agree that the definition of supportive relationship needs to be changed and more clearly defined, the proposed statute goes way too far.

WOW. If this passes, things are really going to get messy!!

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Glitch in the new child support calculations

Under the new child support law, which just became effective in January 2011, did you know that there are certain circumstances where a person will have to pay more child support when they have 20% or more of the overnights than they would if they had less overnights? It has to do with math and the child support guidelines statute. Typically, this situation only occurs when there is a significant difference in the two parties’ incomes (one party has little or no income, and the other makes $4,000.00 or more), and when the overnights are between 73 (20%) and 90 (24.7%). In this circumstance, the parent who is required to pay child support would be required to actually pay MORE child support for having 80 annual overnights, than they would if they only had 70. For example, with $4,000.00 monthly gross income for one parent, $800.00 monthly gross for the other, and 80 overnights annually for the higher earning parent, child support would be $778.64 per month and with 70 overnights, it would only be $708.26. So, it’s as if the paying parent is actually penalized for spending more time with their child! Hardly fair, and many would argue that it is unconstitutional as well.

When this situation arises in a divorce or child support case, there are potential arguments that can be made and motions that can be filed in order to eliminate the unfair increase and deviate from the child support guidelines, but really, the legislature needs to fix this glitch in the new child support calculations. Wouldn’t you agree?

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Recent Changes in Child Support and Alimony Laws in Florida

Child Support in Florida recently went through some drastic changes. Effective January 2011, if one parent has 20% or more of the overnights (73 or more overnights during the course of a year), then their child support obligation may be reduced (it used to be 40% or more of the overnights). In my opinion, this is because the legislature, in determining the child support guidelines, contemplated that if the child was spending that much time with one of the parents, then they were already contributing to the support of the child by virtue of the amount of time that they were spending with the child. This doesn’t mean that there won’t be any child support paid at all, just that there is a second calculation that has to be done to determine what the appropriate amount of child support to be exchanged should be. The amount of the decrease is determined by the percentage of overnights, and someone who has 20% will not have nearly the reduction as someone who has 40% or more. And, if the parties incomes are significantly different, there will probably still be some child support exchanged even if the timesharing is equal or 50/50. The child support obligation will simply be a reduction from what it would be under the standard child support calculation.

Alimony also has recently undergone drastic changes. First, the legislature defined three different “types” of marriages: short term, moderate term and long term. The term of the marriage is determined as the length of time from the date the parties were married until the date of the filing of the divorce action. A short term marriage is less than 7 years; a moderate term marriage is more than 7 years, but less than 17, and a long term marriage is 17 years or greater.

Additionally, they have now defined the types of alimony available, and even created a new type, durational alimony. There are now four kinds of Alimony (spousal support) in Florida: Bridge-the-Gap, Rehabilitative, Durational and Permanent Periodic. Any of these can be ordered to be paid either via a lump sum payment or monthly payments or a combination of the two. Additionally, temporary alimony or maintenance can be awarded during the duration of the divorce proceedings until a final determination is made by the Judge (or by agreement).

Bridge-the-Gap Alimony – is exactly that, a payment that is made for a certain period of time to help the other party adjust or “get on their feet” following separation. It might be for three months, or six months, or a year or more. Every case is different. It can be awarded whether it is a “short term” marriage, a “moderate term” marriage or a “long term” marriage, depending on the needs and abilities of the parties involved. It is designed to assist the party that has a need with transitioning from being married to being single and meeting legitimate, identifiable short-term needs. It cannot exceed two years and is not modifiable in amount or duration, unless one party dies or remarries.

Rehabilitative Alimony – is a monthly payment that is made for a certain period of time while that person learns a new trade or finishes their education or something similar in order to have the ability to better support themselves. In order to qualify for Rehabilitative Alimony, there has to be a specific and realistic plan developed which would have to be submitted to the Judge for approval. A person will not be awarded Rehabilitative Alimony just so that they can “go back to school in the near future.” A specific and realistic plan for someone might be going back to school for two years to finish their degree, showing that they’ve already been accepted into the program, and detailing this plan, clearly and concisely, to the Judge, along with all necessary financial aspects. If the Judge approves the plan and all of the other necessary factors are there, then usually Rehabilitative Alimony will be awarded (but again, only if there is a legitimate need and ability to pay). Also, Rehabilitative Alimony is typically only awarded if it is a “moderate term” marriage or a “long term” marriage and, of course, depends on the age of the parties. However, depending on the circumstances, it is possible that it would be awarded even if it is a “short term” marriage (although the shorter the term, the less likely). It is important to note that if a party is awarded Rehabilitative Alimony and fails to comply with the terms of their rehabilitation plan, this can be grounds for termination or modification of the Rehabilitative Alimony award.

Durational Alimony – is alimony that is paid for a specific duration that is longer than two years. It was created by the Florida Legislature effective July 1, 2010. It did not previously exist. It is now available to be awarded when Permanent Periodic alimony is not appropriate. This can be very beneficial to the paying spouse who previously might have been ordered to pay permanent alimony, when a permanent need really did not exist, but one longer than a few years did. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of “short” or “moderate” duration. It terminates upon the death or remarriage of the party, and cannot exceed the length of the marriage. It may also be modified or terminated if the financial circumstances of either party substantially change and upon proper application to the Court.

Permanent Periodic Alimony – is essentially what the name implies. It is a monthly payment that is “permanent”, and which would typically only conclude upon the receiving individual getting remarried or dying. Permanent alimony is typically awarded to provide for the needs and necessities of the lesser earning (or no earning) spouse following a divorce and is generally only awarded in “long term” marriages, unless, after consideration of the various factors, which would include infidelity, the court finds that it is appropriate following a “moderate term” marriage. However, in the most extreme circumstances, it could even be awarded in a “short term” marriage (such as if one party becomes totally disabled during the marriage and will never be able to support themselves and the other party has a clear ability to pay the support). Again, everything depends on the needs and abilities of the parties involved, combined with the other factors the court must consider. It should be noted though that even if the award is “permanent”, if there is a “substantial change in circumstances” that was not contemplated at the time the alimony was awarded (such as being laid off and only being able to obtain a much lesser paying job), it is possible to modify Permanent alimony. It can also be modified if the receiving party enters into a supportive relationship (which in and of itself has multiple defining factors and is more than just having a significant other and residing together).

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