Alimony can often be one of the most contentious issues during any family law matter. In the State of Florida, there is no set formula for alimony and judges have wide discretion in determining the amount and term of alimony. Although the American Academy of Matrimonial Lawyers has provided a formula for alimony, this formula is merely a guideline and is not followed by most judges. When presenting or defending an alimony claim, it is imperative to know the proper standard and considerations to present to the trial court.
2023 Florida Alimony Reform Bill
The Alimony Reform Bill of 2023 introduces substantial changes to alimony laws in the state of Florida. The bill directly impacts any divorce case where alimony is a consideration. This includes both new cases and existing cases where modifications to alimony are sought. The changes in the law will affect how alimony is calculated and awarded. If you are going through a divorce or contemplating a divorce, it’s crucial to understand these changes to understand how they may impact you and any potential alimony award.
Key Changes in the 2023 Alimony Reform Bill
The Alimony Reform Bill, also known as Senate Bill 1416, was signed into law by Governor Ron DeSantis on July 1, 2023. The bill introduces several key changes to the existing alimony laws in Florida:
- Elimination of Permanent Alimony: One of the most significant changes brought about by the new law is the elimination of permanent alimony. Under the new law, alimony will be awarded for a specific duration. The set duration is based on whether the marriage is a short-term marriage (less than 10 years), moderate-term marriage (10-20 years), or long-term marriage (20+ years).
- Types of Alimony: Under the new law, there are now four (4) types of alimony in Florida. A court may award temporary alimony, bridge-the-gap alimony, rehabilitative alimony, and durational alimony. Alimony may be paid as a lump sum or in monthly payments as it has traditionally been paid.
- Adultery: Under the new law, courts are permitted to consider the economic impact of adultery in determining the amount of alimony to award.
- Termination of Alimony at Retirement: The new law includes a presumption that alimony will terminate upon the person paying alimony reaching the federal retirement age (as determined by the social security administration) or a customary retirement age for his or her profession.
2019 Changes to Alimony in Florida
Effective January 1, 2019, alimony will no longer be tax deductible to the person paying the alimony and taxable as income to the recipient. This means that the individual paying the alimony will no longer receive an off the top deduction. In other words, alimony will be much more expensive for the individual that is required to pay the alimony. However, alimony will no longer be counted as income to the spouse that is receiving the alimony. The new alimony tax laws only apply to divorce finalized after January 1, 2019. The bill is not retroactive and will not impact current alimony agreements. Read more about the tax bill eliminating the alimony deduction.
Factors for Determining Alimony in Florida – Is Alimony appropriate in your case?
The Courts must consider several statutory factors when determining if alimony is appropriate. These factors are designed to consider the specific circumstances of both parties involved when entering an alimony award. In making an alimony determination, the court will consider the following factors:
- Need and Ability to Pay: The court must first consider whether the party seeking support has an actual need for it and whether the other party has the ability to pay. The party seeking support bears the burden of proof to demonstrate their need for support and the other party’s ability to provide it.
- Standard of Living and Anticipated Needs: The court will consider the standard of living during the marriage and the anticipated needs of both parties after the divorce.
- Duration of the Marriage: The length of the marriage is another important factor. The bill categorizes marriages as short-term (less than 10 years), moderate-term (between 10 and 20 years), and long-term (20 years or more).
- Age, Physical and Mental Condition: The court will consider the age, physical, and mental condition of both parties.
- Income and Resources: The income and resources of both parties, including income earned from marital and nonmarital assets.
- Earning Capacities, Educational Levels, and Employability: The court will consider the earning capacities, educational levels, and employability of both parties. It will also consider the ability of both parties to obtain necessary skills or education to become self-supporting or contribute to their own support.
- Contribution to the Marriage:The court will consider the contribution each party made to the marriage, including education, career building, homemaking, and childcare.
- Responsibilities with Common Children: The responsibilities each party will have in raising any children they have in common.
- Other Factors: Any other factor that the court deems relevant will be considered. This may include a finding that a supportive relationship exists or that one of the parties may reasonably retire.
Can a Court Award Non-Modifiable Alimony?
While parties may reach an agreement to have non-modifiable alimony, there is no provision in the law to allow a court to award non-modifiable alimony. Smith v. Smith, 689 So. 2d 1312 (Fla. 5th DCA 1997). The Fourth District Court of Appeal expanded upon the prohibition against non-modifiable alimony in the case of Nethery v. Nethery, 951 So. 2d 976 (Fla. 4th DCA 2007). The court in Nethery opined that “the trial court has broad discretionary authority to do equity between the parties. Rosario v. Rosario, 945 So. 2d 629, 631 (Fla. 4th DCA 2006). However, in Smith v. Smith, 689 So. 2d 1312, 1312 (Fla. 5th DCA 1997), the court noted that “there is no provision in the law for non-modifiable permanent alimony'” and ordered the provision stricken upon remand. While it is true that under special circumstances lump sum alimony as support can be awarded, there is no corresponding provision in the law for an award of non-modifiable alimony. See Nethery v. Nethery, 951 So. 2d 976 (Fla. 4th DCA 2007).
Section 61.08 restricts the judicial powers of the court when awarding alimony. While the court may find that durational alimony is non-modifiable as to length, it may not restrict the ability for a payor to modify or terminate his or her alimony obligation upon a substantial change in circumstances in accordance with 61.14, Florida Statutes.
Length of Alimony in Florida
The length of the marriage is an important factor when making any alimony determination. The court will look at the length of the marriage to determine what type of alimony is appropriate. When calculating the length of the marriage, the Court will calculate the time elapsed between the date of the marriage and the date of filing for divorce.
- Short-term Marriage: A short term marriage is a marriage that lasts less then 10 years. In short term marriages, the length of the alimony awarded may not exceed 50% or half the length of the marriage.
- Moderate-term marriage: A moderate-term marriage is a marriage that lasts between 10 and 20 years. In moderate term marriages, the length of the alimony award may not exceed 60% of the length of the marriage. For example, if the parties are married for 15 years, the length of the alimony award cannot exceed 9 years.
- Long-term Marriage: A long-term marriage is a marriage that lasts 20 years or more. In long-term marriages, the length of the alimony award may not exceed 75% of the length of the marriage. For example, if the parties are married for 28 years, the length of the alimony award cannot exceed 21 years. It is important to remember that these are the maximum lengths and the judge still has discretion to make an award he or she deems appropriate.
Types of Alimony in Florida
- Temporary Alimony – Temporary alimony, also known as pendente lite alimony, is a type of spousal support that is awarded in Florida during the pendency of a divorce proceeding. This form of alimony is intended to maintain the financial status quo of the parties involved until the final divorce decree is issued. The purpose of temporary alimony is to ensure that the lower-earning or non-earning spouse has the financial resources to cover their living expenses and legal fees during the divorce process. It’s important to note that temporary alimony is just that – temporary. It ends when the final divorce decree is issued. At that time, the court may decide to award a different form of alimony.
- Bridge-the-gap Alimony – Bridge-the-gap alimony, as the name suggests, is designed to “bridge the gap” between married life and single life for a spouse following a divorce. This type of alimony is awarded in Florida to assist a spouse with legitimate, identifiable short-term needs as they transition from being married to being single. The purpose of bridge-the-gap alimony is to support the recipient spouse in meeting immediate, foreseeable needs related to the transition. This could include expenses such as moving costs, security deposits, or even costs associated with reentering the workforce, such as additional education or training. Bridge-the-gap alimony is typically awarded in cases where one spouse may be financially stable post-divorce, while the other spouse needs some financial assistance to adjust to the changes in lifestyle and living arrangements that come with divorce. It’s important to note that bridge-the-gap alimony is limited in duration and cannot exceed two years. Additionally, unlike some other forms of alimony, it is not modifiable in amount or duration. Once awarded, it cannot be increased, decreased, or extended, even if the recipient spouse’s financial circumstances change.
- Rehabilitative Alimony – Rehabilitative alimony is a type of spousal support that is awarded in some divorce cases with the specific goal of helping the recipient spouse become financially independent. This form of alimony is typically awarded when one spouse has been out of the workforce for a significant period of time, often to care for children or the household, and needs assistance to regain the skills or education necessary to reenter the workforce and support themselves. Rehabilitative alimony provides the necessary financial support for the recipient spouse to pursue education, training, or work experience that will enable them to establish a self-supporting career. This could include costs associated with going back to school, completing a degree or certification program, or obtaining necessary job training. Rehabilitative alimony is for a specific period of time, which is determined by the length of the rehabilitation plan. This plan, which must be presented to the court and will outline the steps the recipient spouse will take to become self-supporting, including details about the education or training required, the time frame, and the anticipated costs. It’s important to note that rehabilitative alimony is limited in duration and cannot exceed five years.
- Durational Alimony – Durational alimony is a type of spousal support that is awarded in Florida to provide financial assistance to a spouse following a divorce. This type of alimony is typically awarded in cases of short, moderate, or long-term marriages. The purpose of durational alimony is to provide the recipient spouse with economic assistance for a set period of time, a duration, following the dissolution of the marriage. Under the new Alimony Reform Bill passed in Florida in 2023, the concept of permanent alimony has been eliminated, making durational alimony a more common form of alimony awarded in the state. Durational alimony may not be awarded for marriages lasting less than three (3) years. For marriages over three years, the new law generally stipulates that the duration of alimony should be half the length of the marriage for short-term marriages, 60% of the length of the marriage for moderate-term marriages, and 75% the length of the marriage for long-term marriages. However, the court has the discretion to deviate from these guidelines based on the unique circumstances of each case. The length of a durational alimony award may not exceed the length of the marriage. Additionally, the length of the award may not be modified, except under exceptional circumstances. The money awarded for durational alimony will be the amount that the person receiving the alimony (the payee) needs for their everyday expenses based on the statutory factors provided. However, it is important to note that an alimony award may not leave the person who has to pay alimony (we call them the “payer”) with significantly less net income than the net income of the person who receives the alimony (we call them the “receiver”), unless there are exceptional circumstances.
Modifications of Alimony in Florida
The 2023 Florida Alimony Reform Bill introduces substantial changes to the way is modified in Florida. The bill provides better guidelines for when a modification of alimony can be requested, which includes a significant change in the financial circumstances of either party, or the recipient cohabitating with a new partner. It also introduces a presumption that alimony will terminate upon the payer reaching the federal retirement age.
- Can I file for a Modification? In order to modify alimony, there must be a substantial change in circumstances that was not anticipated at the time of the final judgment. This change must be sufficient, material, involuntary, and permanent in nature. If there are significant changes in the income of either party, it may be grounds for modification. This includes both increases and decreases in income.
- Can I Terminate Alimony if My Spouse Remarries? The law allows for termination of alimony if the recipient remarries.
- Can I Modify Alimony if My Spouse is Cohabitating? A modification of alimony is appropriate if the alimony-receiving ex-spouse is cohabitating with someone. This is not strictly based on cohabitation, but rather on the broader concept of that “supportive relationship” has existed. The court may reduce or terminate an award of alimony if it finds that a supportive relationship has existed within the past year prior to filing the modification action. The person moving to modify or terminate the alimony must prove by a preponderance of the evidence that a supportive relationship exists. The Florida statute lays out eleven factors that a court can consider to establish if a supportive relationship exists. These factors include the extent to which the person receiving alimony and the other person have held themselves out as a married couple, the period of time that the alimony recipient has resided with the other person in a permanent place of abode, the extent to which the alimony recipient and the other person have pooled their assets or income or otherwise exhibited financial interdependence. These are a few examples of the factors that the court will consider among others.
- Can I terminate alimony if I retire? The new law provides specific provisions for retirement. It allows for modification or termination of alimony upon the payer reaching full retirement age as defined by the Social Security Administration or the customary age of retirement for his or her profession. However, the court may consider the payer’s ability to pay alimony after reaching full retirement age. The payer may file a Petition for Modification six (6) months before he or she reasonably anticipates his or her actual retirement. The court will consider the following factors when deciding whether to reduce or terminate alimony:
- The age and health of the payor.
- The type of work performed by the payor.
- The customary age of retirement in the payor’s profession.
- The likelihood that the payor will return to work and the payor’s motivation for retiring.
- The needs of the party receiving alimony and that recipient’s ability to contribute to his or her own needs.
- The impact that the termination or reduction of alimony would have on the payee.
- The parties’ assets before, during, and after the dissolution of marriage, and whether either of the parties wastefully dissipated assets received at the time of the divorce.
- The income earned by the parties during and after the marriage.
- The retirement, pension, and Social Security Benefits received by the parties after the marriage.
- The payor’s compliance with his or her alimony obligation.
Florida Alimony Frequently Asked Questions
What is the Alimony Reform Bill of 2023 in Florida?
The Alimony Reform Bill, also known as Senate Bill 1416, is a new law passed in Florida that introduces significant changes to the state’s alimony laws. It was signed into law by Governor Ron DeSantis on July 1, 2023.
How does the Alimony Reform Bill change the current alimony laws in Florida?
The Alimony Reform Bill introduces several key changes, including the elimination of permanent alimony, the requirement for courts to consider both parties’ gross incomes when determining alimony, and the provision for modification or termination of alimony upon the payer reaching the federal retirement age.
Does the Alimony Reform Bill eliminate permanent alimony in Florida?
Yes, one of the most significant changes brought about by the Alimony Reform Bill is the elimination of permanent alimony. Under the new law, alimony will be awarded for a specific duration. A short-term marriage (less than 10 years) may receive alimony for up to half the length of the marriage, moderate-term marriage (10-20 years) may receive alimony for up to 60% of the length of the marriage, or long-term marriage (20+ years) may receive alimony for up to 75% of the length of the marriage.
Can alimony be modified or terminated when the payer reaches the federal retirement age under the new law?
Yes, the Alimony Reform Bill allows for modification or termination of alimony upon the payer reaching the federal retirement age or the customary retirement age for his or her profession.
What constitutes a “substantial change in circumstances” for alimony modification under the new Florida Alimony Reform Bill 2023?
A “substantial change in circumstances” refers to a significant change that was not expected when the final alimony decision was made. This change must be big enough to affect the alimony, not voluntary (meaning it wasn’t done on purpose to change the alimony), and it must be a permanent change.
How does reaching full retirement age affect alimony payments according to the new Florida Alimony Reform Bill 2023?
When the person paying alimony reaches full retirement age, as defined by the Social Security Administration, they can ask the court to reduce or stop the alimony payments. However, the court will also consider if the person can continue to pay alimony after reaching retirement age.
What happens to alimony if the recipient remarries or starts living with a partner?
If the person receiving alimony gets married again or starts living with a partner in a supportive relationship, the person paying alimony can ask the court to reduce or stop the alimony payments. The court will look at factors like the nature of the relationship, any financial support provided in the relationship, and how long the relationship has lasted.
Can changes in income lead to alimony modification under the new Florida Alimony Reform Bill 2023?
Yes, significant changes in the income of either the person paying or receiving alimony can be grounds for modifying the alimony. This includes both increases and decreases in income.