Guide to SB 718 and Pending Matrimonial Legislative Changes

Eddie Stephens

Eddie Stephens

Assuming the Governor does not veto Senate Bill 718 by May 1, 2013; the following changes to codified matrimonial law will occur effective July 1, 2013:

(Equitable Distribution)  61.075(6)(a)(c):  Provides codified coverture fraction calculation for determining passive enhancement on non-marital real property where marital funds used to service debt.

(Equitable Distribution)  61.075(10)(b): Requires security and reasonable interest or otherwise recognize the time value of money in determining award.

(Alimony) 61.08(1)(b):  Defines “long term marriage’ having a duration of 20 years or more.

(Alimony) 61.08(1)(c):  : Defines “mid-term marriage’ having a duration of more than 11 but less than 20 years.

(Alimony) 61.08(1)(e):  : Defines “short-term marriage’ having a duration equal to or less than 11 years.

(Alimony) 61.08(1)(d):  : Changes definition of “net income” in accordance with 61.30 (child support statute).

(Alimony) 61.08(2)(a):  Eliminates permanent alimony.  Court must prioritize bridge-the-gap alimony, followed by rehabilitative over durational.

(Alimony) 61.08(2)(b): Require trial court to make written findings including basis, type, duration of alimony or combined forms of alimony.

(Alimony) 61.08(3).  Places burden of proof on party seeking alimony.

(Alimony) 61.08(3)(a). Standard of living eliminated as a factor to be considered.

(Alimony) 61.08(3)(c): Adds consideration of portion of non-marital assets that were relied upon by the parties during the marriage as a factor.

(Alimony) 61.08(3)(h):  Adds consideration of income from assets acquired during marriage or non-marital investment income relied upon during the marriage as a factor.

(Alimony) 61.08(3)(i):  Adds consideration of the “needs and necessities of life” after divorce as a factor.

(Alimony) 61.08(3)(j):  Creates rebuttable presumption that both parties will have a lower standard of living after divorce.

(Alimony) 61.08(4): Codifies requirement of term life insurance to secure life insurance upon a finding of special circumstances and reasonable available and affordable.  Requires amount of security to be reduced commensurate with any reduction of alimony.

(Alimony) 61.08(4): Eliminates previous definitions of short term, moderate term and long term marriages.

(Alimony) 61.08(7):  In awarding duration alimony Court must make finding no other form of alimony is appropriate.  Rebuttable presumption that duration may not exceed half the length of marriage.

(Alimony) 61.08(8)(a): Creates a rebuttable presumption against awarding alimony for a short-term marriage. A party seeking bridge-the-gap or rehabilitative alimony may overcome this presumption by demonstrating by a preponderance of the evidence a need for alimony. A party seeking durational alimony may overcome this presumption by demonstrating by clear and convincing evidence a need for alimony. Limits amount to 25% of the obligor’s gross monthly income, as calculated under s. 61.30(2)(a), with the exception that gross income does not include sources of income acquired outside of the marriage which were not relied upon during the marriage.

(Alimony) 61.08(8)(b): Creates no presumption in favor of either party to an award of alimony for a mid-term marriage. A party seeking such alimony must prove by a preponderance of the evidence a need for alimony. If the court finds that the party has met its burden in demonstrating a need for alimony and that the other party has the ability to pay alimony, the court shall determine a monthly award of alimony that may not exceed 35 percent of the obligor’s gross monthly income, as calculated under s. 61.30(2)(a), with the exception that gross income does not include sources of income acquired outside of the marriage which were not relied upon during the marriage.

(Alimony) 61.08(8)(c): Creates a rebuttable presumption in favor of awarding alimony for a long-term marriage. A party against whom alimony is sought may overcome this presumption by demonstrating by clear and convincing evidence that there is no need for alimony. Caps monthly award of alimony to 38% percent of the obligor’s gross monthly income, as calculated under s. 61.30(2)(a), with the exception that gross income does not include, sources of income acquired outside of the marriage which were not relied upon during the marriage.

(Alimony) 61.08(8)(d): The combination of an award of rehabilitative alimony and another form of alimony may be awarded up to a maximum of 40 percent of the obligor’s gross monthly income during the temporary period in which rehabilitative alimony has been awarded, as calculated under s. 61.30(2)(a), with the exception that gross income does not include sources of income acquired outside of the marriage which were not relied upon during the marriage.

(Alimony) 61.08(9):  Grants Court discretion to award alimony exceeding limits with written findings of additional need.

(Alimony) 61.08(10):  A party against whom alimony is sought who has met the requirements for retirement in accordance with s. 61.14(12) before the filing of the petition for dissolution is not required to pay alimony unless the party seeking alimony proves by clear and convincing evidence the other party has the ability to pay alimony, in addition to all other requirements of this section.

(Alimony 61.08)(11)(9):  Prohibits alimony from being awarded to a party who has a monthly net income that is equal to or more than the other party. Except in the case of a long-term marriage, in awarding alimony, the court shall impute income to the obligor and obligee as follows:

(a)   In the case of the obligor, social security retirement  benefits may not be imputed to the obligor, as demonstrated by a social security retirement benefits entitlement letter.

(b)   In the case of the obligee, if the obligee:

  1. Is unemployed at the time the petition is filed and has been unemployed for less than 1 year before the time of the filing of the petition, the obligee’s monthly net income shall be imputed at 90 percent of the obligee’s prior monthly net income
  2. Is unemployed at the time the petition is filed and has been unemployed for at least 1 year but less than 2 years before the time of the filing of the petition, the obligee’s monthly net income shall be imputed at 80 percent of the obligee’s prior monthly net income.
  3. Is unemployed at the time the petition is filed and has  been unemployed for at least 2 years but less than 3 years before the time of the filing of the petition, the obligee’s monthly net income shall be imputed at 70 percent of the obligee’s prior monthly net income
  4. Is unemployed at the time the petition is filed and has been unemployed for at least 3 years but less than 4 years before the time of the filing of the petition, the obligee’s monthly net income shall be imputed at 60 percent of the obligee’s prior monthly net income.
  5. Is unemployed at the time the petition is filed and has been unemployed for at least 4 years but less than 5 years before the time of the filing of the petition, the obligee’s monthly net income shall be imputed at 50 percent of the obligee’s prior monthly net income.
  6. Is unemployed at the time the petition is filed and has  been unemployed for at least 5 years before the time of the filing of the petition, the obligee’s monthly net income shallbe imputed at 40 percent of the obligee’s prior monthly net income, or the monthly net income of a minimum wage earner at the time of the filing of the petition, whichever is greater.
  7. Proves by a preponderance of the evidence that he or she does not have the ability to earn the imputed income through reasonable means, the court shall reduce the imputation of income specified in this paragraph. If the obligee alleges that a physical disability has impaired his or her ability to earn the imputed income, such disability must meet the definition of disability as determined by the Social Security Administration.

(Parenting) 61.13(2)c)(1):  Equal time-sharing with a minor child by both parents is in the best interest of the child unless the court finds that:

a. The safety, well-being, and physical, mental, and emotional health of the child would be endangered by equal time-sharing, that visitation would be presumed detrimental consistent with s. 39.0139(3), or that supervised visitation is appropriate, if any is appropriate;

b. Clear and convincing evidence of extenuating circumstances justify a departure from equal time-sharing and the court makes written findings justifying the departure from equal time-sharing;

c. A parent is incarcerated;

d. The distance between parental residences makes equal time-sharing impracticable;

e. A parent does not request at least 50-percent time-sharing;

f. A permanent injunction has been entered or is warranted against a parent or household member relating to contact between the subject of the injunction and the parent or household member; or

g. Domestic violence, as defined in s. 741.28, has occurred.

The amendments made by this act to s. 61.13, Florida Statutes, providing for equal time-sharing, apply prospectively to initial final custody orders made on or after July 1, 2013. The amendments do not constitute a substantial change in circumstances that warrant the modification of a final custody order entered before July 1, 2013.

(Modification) 61.14((1)b)  If the court has determined that an existing alimony award as determined by the court at the time of dissolution is insufficient to meet the needs of the obligee, and that such need continues to exist, an alimony order shall be modified upward and upon a showing by a preponderance of the evidence of increased ability to pay alimony. Absent a finding of fraud, an increase in an obligor’s income may not be considered permanent in nature unless the increase has been maintained without interruption for at least 1 year, taking into account the obligor’s ability to sustain his or her income.

(Modification) 61.14(5):  There is a rebuttable presumption that any modification or termination of an alimony award is retroactive to the date of the filing of the petition. In an action under this section, if it is determined that the obligee or obligor unnecessarily or unreasonably litigated the underlying petition for modification or termination, the court may award the other party his or her reasonable attorney fees and costs pursuant to s. 61.16 and applicable case law.

(Modification) 61.14(b)(11)(c):  If the court orders alimony payable concurrent with a child support order, the alimony award may not be modified solely because of a later reduction or termination of child support payments, unless the court finds the obligor has the ability to pay the modified alimony award, the existing alimony award as determined by the court at the time of dissolution is insufficient to meet the needs of the obligee, and such need continues to exist.

(Modification) 61.14(b)(11)(d):  An obligor’s subsequent remarriage or cohabitation does not constitute a basis for a modification of alimony. The income and assets of the obligor’s subsequent spouse or person with whom the obligor resides is not relevant in a modification action except under exceptional circumstances.

(Modification) 61.14(b)(12):  The fact that an obligor has reached a reasonable retirement age for his or her profession, has retired, and has no intent to return to work shall be considered a substantial change in circumstances as a matter of law. In determining whether the obligor’s retirement age is reasonable, the court shall consider the obligor’s:

(a) Age.

(b) Health.

(c) Motivation for retirement.

(d) Type of work.

(e) Normal retirement age for that type of work.

In anticipation of retirement, the obligor may file a petition for termination or modification of the alimony award effective upon the retirement date. The court shall terminate or modify the alimony award based on the circumstances of the parties after retirement of the obligor and based on the factors in s. 776 61.08(3), unless the court makes findings of fact that a termination or modification of an alimony award is not warranted.

(Procedure)  61.19(2):

(a) During the first 180 days after the date of service of the original petition for dissolution of marriage, the court may not grant a final dissolution of marriage with a reservation of jurisdiction to subsequently determine all other substantive issues unless the court makes written findings that there are exceptional circumstances that make the use of this process clearly necessary to protect the parties or their children and that granting a final dissolution will not cause irreparable harm to either party or the children. Before granting a final dissolution of marriage with a reservation of jurisdiction to subsequently determine all other substantive issues, the court shall enter temporary orders necessary to protect the parties and their children, which orders remain effective until all other issues can be adjudicated by the court. The desire of one party to remarry does not justify the use of this process.

(b) If more than 180 days have elapsed after the date of service of the original petition for dissolution of marriage, the court may grant a final dissolution of marriage with a reservation of jurisdiction to subsequently determine all other substantive issues only if the court enters temporary orders necessary to protect the parties and their children, which orders remain effective until such time as all other issues can be adjudicated by the court, and makes a written finding that no irreparable harm will result from granting a final dissolution.

(c) If more than 365 days have elapsed after the date of service of the original petition for dissolution of marriage, absent a showing by either party that irreparable harm will result from granting a final dissolution, the court shall, upon request of either party, immediately grant a final dissolution of marriage with a reservation of jurisdiction to subsequently determine all other substantive issues. Before granting a final dissolution of marriage with a reservation of jurisdiction to subsequently determine all other substantive issues, the court shall enter temporary orders necessary to protect the parties and their children, which orders remain effective until all other issues can be adjudicated by the court.

(d) The temporary orders necessary to protect the parties and their children entered before granting a dissolution of marriage without an adjudication of all substantive issues may include, but are not limited to, temporary orders that:

1. Restrict the sale or disposition of property.

2. Protect and preserve the marital assets.

3. Establish temporary support.

4. Provide for maintenance of health insurance.

5. Provide for maintenance of life insurance.

(e) The court is not required to enter temporary orders to protect the parties and their children if the court enters a final judgment of dissolution of marriage that adjudicates substantially all of the substantive issues between the parties but reserves jurisdiction to address ancillary issues such as the entry of a qualified domestic relations order or the adjudication of attorney fees and costs.

Section 10.

(1)(a) The amendments to chapter 61, Florida Statutes, made by this act apply to:

1. Final judgments of alimony awards entered before July 1, 2013.

2. Final orders entered before July 1, 2013, that incorporate an agreement between the parties for alimony, if the duration of the marriage was equal to or less than 15 years and the duration of the alimony agreement exceeds the duration of the marriage.

(b) For such judgments or orders, the amendments to chapter 61, Florida Statutes, shall constitute a substantial change in circumstances for which an obligor may seek, in accordance with s. 61.14, Florida Statutes, a modification of the amount or duration of alimony, except for an order incorporating an agreement that is expressly nonmodifiable.

(2)(a) For final orders entered before July 1, 2013 that incorporate an agreement between the parties for alimony, but otherwise do not meet the criteria set forth in subparagraph (1)(a)2., the amendments to chapter 61, Florida Statutes, made by this act shall apply if the obligor proves, by clear and convincing evidence, that:

1. The obligor did not execute the agreement voluntarily;

2. The agreement was the product of fraud, duress, coercion, or overreaching; or 3. The agreement was unconscionable when it was executed and, before execution of the agreement, the obligor:

a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party.

b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond disclosure provided.

c. Did not have or reasonably could not have had and adequate knowledge of the property or financial obligations of the other party.

(b) For such orders, the amendments to chapter 61, Florida Statutes, shall constitute a substantial change in circumstances for which an obligor may seek, in accordance with s. 61.14, Florida Statutes, a modification of the amount or duration of alimony, except for an order incorporating an agreement that is expressly nonmodifiable.

(3) Final judgments and orders for which the amendments to chapter 61, Florida Statutes, constitute a substantial change in circumstances under subsection (1) and (2) may be the subject of a modification action according to the following schedule:

(a) An obligor who is subject to alimony of 15 years or more may file a modification action on or after July 1, 2013.

(b) An obligor who is subject to alimony of 8 years of more, but less than 15 years, may file a modification action on or after July 1, 2014.

(c) An obligor who is subject to alimony of less than 8 years may file a modification action on or after July 1, 2015.

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