What’s Alimony Got To Do With Time Sharing? Florida Alimony Reform Could Have Negative Consequences

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What’s Alimony Got To Do With Time Sharing? Florida Alimony Reform Could Have Negative Consequences

by Eddie Stephens

Tallahassee is at it again.  The politicians are currently attempting, for the third time, to accomplish “alimony reform” in the State of Florida.  The first of these bills to pass the Senate Judiciary Committee this session is SB668.  Included in this bill is a presumption that equal (i.e. 50/50) time sharing between the child and his/her two divorced parents is in the child’s best interest.  This addition has nothing to do with alimony.  It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate, or the marriage of the parties is dissolved, and to encourage parents to share the rights and responsibilities, and joys, of childrearing.

Currently there is no presumption for or against the father or mother of the child, or for or against any specific time sharing schedule when creating or modifying the parenting plan of the child.  Many psychologists will tell you that a “one size fits all” approach does not work.  Many factors must be considered including the temperament and age the child, the attachment between the child and primary parent, and the steep learning curve for the non-primary parent.  The needs of an infant/toddler are different than those of a child, which are totally different from those of a teenager.  What if the child has special needs or a disability?  Is it presumptively in the child’s best interest to have equal timesharing of a child who is nursing or who is not yet enrolled in Kindergarten?

Proponents will point out this presumption is “rebuttable”.  I can tell you from years of experience, the Judge relies on presumptions.  It is always much more expensive to litigate if it involves overcoming a presumption.  This change would create the necessity for expensive expert testimony to rebut the presumption.  Litigation is already exhaustively expensive.  This change will make it unfeasible for most parents in Florida to challenge the equal time sharing presumption.

In 2007, the Florida Legislation modified the way child support is calculated.  It made the percentage of overnights a more significant variable in the child support calculation.  On paper, this seems like a reasonable way to adjust the amount of support based on the substantial time “non-residential parents”* are now spending with their children.  In practice, this change has created additional conflict and opportunities to litigate.  The amendment created a definable financial stake for each overnight the payor of child support obtained.  More often than not these decisions are financially motivated as opposed to being based upon the best interests of children.  For those parents who seek to minimize their child support obligation, it will be presumptively based on 50/50 time sharing, even if a parent has not played an active parenting role.

While it is common where both parents work nowadays, generally speaking, one parent typically makes much more than the other parent who will have more parental duties.  I do not think intact families have “evolved” to the point where most parents share parental duties “equally”.  Accordingly, the presumption that is being applied to most of the families divorcing in Florida is not reflective how those families have historically divided parental duties.  This is my observation from watching hundreds of couples divorce over the span of my 18 year career.

I am not advocating against equal time sharing.  In many circumstances, it does work and is in a family’s best interest.  However, at this current point it does not represent the “norm” of our society.  I suggest it would be detrimental to Florida families to create a presumption in favor of equal timesharing at this time.

*The terms “residential” and “non-residential” parents were eliminated from Florida Statutes in 2007.

Here is the text of the current bill:

  By the Committee on Judiciary; and Senator Stargel
       
       590-03680-16                                           2016668c1
    1                        A bill to be entitled                      
    2         An act relating to family law; amending s. 61.071,
    3         F.S.; requiring a court to consider certain alimony
    4         factors and make specific written findings of fact
    5         under certain circumstances; prohibiting a court from
    6         using certain presumptive alimony guidelines in
    7         calculating alimony pendente lite; amending s. 61.08,
    8         F.S.; defining terms; requiring a court to make
    9         specified initial written findings in a dissolution of
   10         marriage proceeding where a party has requested
   11         alimony; requiring a court to make specified findings
   12         before ruling on a request for alimony; providing for
   13         determinations of presumptive alimony amount range and
   14         duration range; providing presumptions concerning
   15         alimony awards depending on the duration of marriages;
   16         providing for imputation of income in certain
   17         circumstances; specifying exceptions to the guidelines
   18         for the amount and duration of alimony awards;
   19         providing for awards of nominal alimony in certain
   20         circumstances; providing for taxability and
   21         deductibility of alimony awards; prohibiting a
   22         combined award of alimony and child support from
   23         constituting more than a specified percentage of a
   24         payor’s net income; authorizing the court to order a
   25         party to protect an alimony award by specified means;
   26         providing for termination of an award; authorizing a
   27         court to modify or terminate the amount of an initial
   28         alimony award; prohibiting a court from modifying the
   29         duration of an alimony award; providing for payment of
   30         awards; amending s. 61.13, F.S.; revising public
   31         policy; revising the factors that are used to
   32         determine the best interests of a child; requiring a
   33         court order to be supported by written findings of
   34         fact for a specified initial permanent time-sharing
   35         schedule; amending s. 61.14, F.S.; prohibiting a court
   36         from changing the duration of alimony; authorizing a
   37         party to pursue an immediate modification of alimony
   38         in certain circumstances; revising factors to be
   39         considered in determining whether an existing award of
   40         alimony should be reduced or terminated because of an
   41         alleged supportive relationship; providing for burden
   42         of proof for claims concerning the existence of
   43         supportive relationships; providing for the effective
   44         date of a reduction or termination of an alimony
   45         award; providing that the remarriage of an alimony
   46         obligor is not a substantial change in circumstance;
   47         providing that the financial information of a spouse
   48         of a party paying or receiving alimony is inadmissible
   49         and undiscoverable; providing an exception; providing
   50         for modification or termination of an award based on a
   51         party’s retirement; providing a presumption upon a
   52         finding of a substantial change in circumstance;
   53         specifying factors to be considered in determining
   54         whether to modify or terminate an award based on a
   55         substantial change in circumstance; providing for a
   56         temporary suspension of an obligor’s payment of
   57         alimony while his or her petition for modification or
   58         termination is pending; providing for an award of
   59         attorney fees and costs for unreasonably pursuing or
   60         defending a modification of an award; providing for an
   61         effective date of a modification or termination of an
   62         award; amending s. 61.30, F.S.; requiring that a child
   63         support award be adjusted to reduce the combined
   64         alimony and child support award under certain
   65         circumstances; creating s. 61.192, F.S.; providing for
   66         motions to advance the trial of certain actions if a
   67         specified period has passed since the initial service
   68         on the respondent; amending ss. 61.1827 and 409.2579,
   69         F.S.; conforming cross-references; providing
   70         applicability; providing an effective date.
   71          
   72  Be It Enacted by the Legislature of the State of Florida:
   73  
   74         Section 1. Section 61.071, Florida Statutes, is amended to
   75  read:
   76         61.071 Alimony pendente lite; suit money.—In every
   77  proceeding for dissolution of the marriage, a party may claim
   78  alimony and suit money in the petition or by motion, and if the
   79  petition is well founded, the court shall allow a reasonable sum
   80  therefor. If a party in any proceeding for dissolution of
   81  marriage claims alimony or suit money in his or her answer or by
   82  motion, and the answer or motion is well founded, the court
   83  shall allow a reasonable sum therefor. After determining there
   84  is a need for alimony and that there is an ability to pay
   85  alimony, the court shall consider the alimony factors in s.
   86  61.08(4)(b)1.-14. and make specific written findings of fact
   87  regarding the relevant factors that justify an award of alimony
   88  under this section. The court may not use the presumptive
   89  alimony guidelines in s. 61.08 to calculate alimony under this
   90  section.
   91         Section 2. Section 61.08, Florida Statutes, is amended to
   92  read:
   93         (Substantial rewording of section. See
   94         s. 61.08, F.S., for present text.)
   95         61.08 Alimony.—
   96         (1) DEFINITIONS.—As used in this section, unless the
   97  context otherwise requires, the term:
   98         (a)1. “Gross income” means recurring income from any source
   99  and includes, but is not limited to:
  100         a. Income from salaries.
  101         b. Wages, including tips declared by the individual for
  102  purposes of reporting to the Internal Revenue Service or tips
  103  imputed to bring the employee’s gross earnings to the minimum
  104  wage for the number of hours worked, whichever is greater.
  105         c. Commissions.
  106         d. Payments received as an independent contractor for labor
  107  or services, which payments must be considered income from self
  108  employment.
  109         e. Bonuses.
  110         f. Dividends.
  111         g. Severance pay.
  112         h. Pension payments and retirement benefits actually
  113  received.
  114         i. Royalties.
  115         j.Rental income, which is gross receipts minus ordinary
  116  and necessary expenses required to produce the income.
  117         k. Interest.
  118         l. Trust income and distributions which are regularly
  119  received, relied upon, or readily available to the beneficiary.
  120         m. Annuity payments.
  121         n. Capital gains.
  122         o. Any money drawn by a self-employed individual for
  123  personal use that is deducted as a business expense, which
  124  moneys must be considered income from self-employment.
  125         p. Social security benefits, including social security
  126  benefits actually received by a party as a result of the
  127  disability of that party.
  128         q. Workers’ compensation benefits.
  129         r. Unemployment insurance benefits.
  130         s. Disability insurance benefits.
  131         t. Funds payable from any health, accident, disability, or
  132  casualty insurance to the extent that such insurance replaces
  133  wages or provides income in lieu of wages.
  134         u. Continuing monetary gifts.
  135         v. Income from general partnerships, limited partnerships,
  136  closely held corporations, or limited liability companies;
  137  except that if a party is a passive investor, has a minority
  138  interest in the company, and does not have any managerial duties
  139  or input, the income to be recognized may be limited to actual
  140  cash distributions received.
  141         w. Expense reimbursements or in-kind payments or benefits
  142  received by a party in the course of employment, self
  143  employment, or operation of a business which reduces personal
  144  living expenses.
  145         x. Overtime pay.
  146         y. Income from royalties, trusts, or estates.
  147         z.Spousal support received from a previous marriage.
  148         aa.Gains derived from dealings in property, unless the
  149  gain is nonrecurring.
  150         2. “Gross income” does not include:
  151         a. Child support payments received.
  152         b. Benefits received from public assistance programs.
  153         c. Social security benefits received by a parent on behalf
  154  of a minor child as a result of the death or disability of a
  155  parent or stepparent.
  156         d. Earnings or gains on retirement accounts, including
  157  individual retirement accounts; except that such earnings or
  158  gains shall be included as income if a party takes a
  159  distribution from the account. If a party is able to take a
  160  distribution from the account without being subject to a federal
  161  tax penalty for early distribution and the party chooses not to
  162  take such a distribution, the court may consider the
  163  distribution that could have been taken in determining the
  164  party’s gross income.
  165         3.a. For income from self-employment, rent, royalties,
  166  proprietorship of a business, or joint ownership of a
  167  partnership or closely held corporation, the term “gross income”
  168  equals gross receipts minus ordinary and necessary expenses, as
  169  defined in sub-subparagraph b., which are required to produce
  170  such income.
  171         b. “Ordinary and necessary expenses,” as used in sub
  172  subparagraph a., does not include amounts allowable by the
  173  Internal Revenue Service for the accelerated component of
  174  depreciation expenses or investment tax credits or any other
  175  business expenses determined by the court to be inappropriate
  176  for determining gross income for purposes of calculating
  177  alimony.
  178         (b) “Potential income” means income which could be earned
  179  by a party using his or her best efforts and includes potential
  180  income from employment and potential income from the investment
  181  of assets or use of property. Potential income from employment
  182  is the income which a party could reasonably expect to earn by
  183  working at a locally available, full-time job commensurate with
  184  his or her education, training, and experience. Potential income
  185  from the investment of assets or use of property is the income
  186  which a party could reasonably expect to earn from the
  187  investment of his or her assets or the use of his or her
  188  property in a financially prudent manner.
  189         (c)1. “Underemployed” means a party is not working full
  190  time in a position which is appropriate, based upon his or her
  191  educational training and experience, and available in the
  192  geographical area of his or her residence.
  193         2. A party is not considered “underemployed” if he or she
  194  is enrolled in an educational program that can be reasonably
  195  expected to result in a degree or certification within a
  196  reasonable period, so long as the educational program is:
  197         a. Expected to result in higher income within the
  198  foreseeable future.
  199         b. A good faith educational choice based upon the previous
  200  education, training, skills, and experience of the party and the
  201  availability of immediate employment based upon the educational
  202  program being pursued.
  203         (d) “Years of marriage” means the number of whole years,
  204  beginning from the date of the parties’ marriage until the date
  205  of the filing of the action for dissolution of marriage.
  206         (2) INITIAL FINDINGS.—When a party has requested alimony in
  207  a dissolution of marriage proceeding, before granting or denying
  208  an award of alimony, the court shall make initial written
  209  findings as to:
  210         (a) The amount of each party’s monthly gross income,
  211  including, but not limited to, the actual or potential income,
  212  and also including actual or potential income from nonmarital or
  213  marital property distributed to each party.
  214         (b) The years of marriage as determined from the date of
  215  marriage through the date of the filing of the action for
  216  dissolution of marriage.
  217         (3) ALIMONY GUIDELINES.—After making the initial findings
  218  described in subsection (2), the court shall calculate the
  219  presumptive alimony amount range and the presumptive alimony
  220  duration range. The court shall make written findings as to the
  221  presumptive alimony amount range and presumptive alimony
  222  duration range.
  223         (a) Presumptive alimony amount range.—The low end of the
  224  presumptive alimony amount range shall be calculated by using
  225  the following formula:
  226  
  227  (0.015 x the years of marriage) x the difference between the
  228  monthly gross incomes of the parties
  229  
  230  The high end of the presumptive alimony amount range shall be
  231  calculated by using the following formula:
  232  
  233  (0.020 x the years of marriage) x the difference between the
  234  monthly gross incomes of the parties
  235  
  236  For purposes of calculating the presumptive alimony amount
  237  range, 20 years of marriage shall be used in calculating the low
  238  end and high end for marriages of 20 years or more. In
  239  calculating the difference between the parties’ monthly gross
  240  income, the income of the party seeking alimony shall be
  241  subtracted from the income of the other party. If the
  242  application of the formulas to establish a guideline range
  243  results in a negative number, the presumptive alimony amount
  244  shall be $0.
  245         (b) Presumptive alimony duration range.—The low end of the
  246  presumptive alimony duration range shall be calculated by using
  247  the following formula:
  248  
  249  0.25 x the years of marriage
  250  
  251  The high end of the presumptive alimony duration range shall be
  252  calculated by using the following formula:
  253  
  254  0.75 x the years of marriage
  255  
  256         (c)Exceptions to alimony guidelines.—
  257         1. If a court establishes the duration of the alimony award
  258  at 50 percent or less of the length of the marriage, the court
  259  shall use the actual years of the marriage, up to a maximum of
  260  25 years, to calculate the high end of the presumptive alimony
  261  amount range.
  262         2. A court may award alimony in an amount that equalizes
  263  the income of the parties until the obligor retires upon
  264  reaching the age for eligibility for full retirement benefits
  265  under s. 216 of the Social Security Act, 42 U.S.C. s. 416, or
  266  upon reaching the customary retirement age for his or her
  267  occupation if:
  268         a. The duration of the marriage was at least 20 years;
  269         b. Pursuant to the mutual agreement or consent of the
  270  parties to the marriage, one spouse substantially refrained from
  271  economic, educational, or employment opportunities primarily for
  272  the purpose of contributing to the marriage through homemaking
  273  or child care activities; and
  274         c. The spouse seeking alimony even with additional
  275  education faces dramatically reduced opportunities to advance in
  276  a career.
  277  
  278  This subparagraph should not be applied in a manner that
  279  discourages a spouse from seeking additional education or
  280  employment opportunities.
  281         (4) ALIMONY AWARD.—
  282         (a) Marriages of 2 years or less.—For marriages of 2 years
  283  or less, there is a rebuttable presumption that no alimony shall
  284  be awarded. The court may award alimony for a marriage with a
  285  duration of 2 years or less only if the court makes written
  286  findings that there is a clear and convincing need for alimony,
  287  there is an ability to pay alimony, and that the failure to
  288  award alimony would be inequitable. The court shall then
  289  establish the alimony award in accordance with paragraph (b).
  290         (b) Marriages of more than 2 years.—Absent an agreement of
  291  the parties, alimony shall presumptively be awarded in an amount
  292  within the alimony amount range calculated in paragraph (3)(a).
  293  Absent an agreement of the parties, alimony shall presumptively
  294  be awarded for a duration within the alimony duration range
  295  calculated in paragraph (3)(b). In determining the amount and
  296  duration of the alimony award, the court shall consider all of
  297  the following factors upon which evidence was presented:
  298         1. The financial resources of the recipient spouse,
  299  including the actual or potential income from nonmarital or
  300  marital property or any other source and the ability of the
  301  recipient spouse to meet his or her reasonable needs
  302  independently.
  303         2. The financial resources of the payor spouse, including
  304  the actual or potential income from nonmarital or marital
  305  property or any other source and the ability of the payor spouse
  306  to meet his or her reasonable needs while paying alimony.
  307         3. The standard of living of the parties during the
  308  marriage with consideration that there will be two households to
  309  maintain after the dissolution of the marriage and that neither
  310  party may be able to maintain the same standard of living after
  311  the dissolution of the marriage.
  312         4. The equitable distribution of marital property,
  313  including whether an unequal distribution of marital property
  314  was made to reduce or alleviate the need for alimony.
  315         5. Both parties’ income, employment, and employability,
  316  obtainable through reasonable diligence and additional training
  317  or education, if necessary, and any necessary reduction in
  318  employment due to the needs of an unemancipated child of the
  319  marriage or the circumstances of the parties.
  320         6. Whether a party could become better able to support
  321  himself or herself and reduce the need for ongoing alimony by
  322  pursuing additional educational or vocational training along
  323  with all of the details of such educational or vocational plan,
  324  including, but not limited to, the length of time required and
  325  the anticipated costs of such educational or vocational
  326  training.
  327         7. Whether one party has historically earned higher or
  328  lower income than the income reflected at the time of trial and
  329  the duration and consistency of income from overtime or
  330  secondary employment.
  331         8. Whether either party has foregone or postponed economic,
  332  educational, or employment opportunities during the course of
  333  the marriage.
  334         9. Whether either party has caused the unreasonable
  335  depletion or dissipation of marital assets.
  336         10. The amount of temporary alimony and the number of
  337  months that temporary alimony was paid to the recipient spouse.
  338         11. The age, health, and physical and mental condition of
  339  the parties, including consideration of significant health care
  340  needs or uninsured or unreimbursed health care expenses.
  341         12. Significant economic or noneconomic contributions to
  342  the marriage or to the economic, educational, or occupational
  343  advancement of a party, including, but not limited to, services
  344  rendered in homemaking, child care, education, and career
  345  building of the other party, payment by one spouse of the other
  346  spouse’s separate debts, or enhancement of the other spouse’s
  347  personal or real property.
  348         13. The tax consequence of the alimony award.
  349         14. Any other factor necessary to do equity and justice
  350  between the parties.
  351         (c) Deviation from guidelines.—The court may establish an
  352  award of alimony that is outside the presumptive alimony amount
  353  or alimony duration ranges only if the court considers all of
  354  the factors in paragraph (b) and makes specific written findings
  355  concerning the relevant factors justifying that the application
  356  of the presumptive alimony amount or alimony duration ranges, as
  357  applicable, is inappropriate or inequitable.
  358         (d) Order establishing alimony award.—After consideration
  359  of the presumptive alimony amount and duration ranges in
  360  accordance with paragraphs (3)(a) and (b) and the factors upon
  361  which evidence was presented in accordance with paragraph (b),
  362  the court may establish an alimony award. An order establishing
  363  an alimony award must clearly set forth both the amount and the
  364  duration of the award. The court shall also make a written
  365  finding that the payor has the financial ability to pay the
  366  award.
  367         (5) IMPUTATION OF INCOME.—If a party is voluntarily
  368  unemployed or underemployed, alimony shall be calculated based
  369  on a determination of potential income unless the court makes
  370  specific written findings regarding the circumstances that make
  371  it inequitable to impute income.
  372         (6) NOMINAL ALIMONY.—Notwithstanding subsections (1), (3),
  373  and (4), the court may make an award of nominal alimony in the
  374  amount of $1 per year if, at the time of trial, a party who has
  375  traditionally provided the primary source of financial support
  376  to the family temporarily lacks the ability to pay support but
  377  is reasonably anticipated to have the ability to pay support in
  378  the future. The court may also award nominal alimony for an
  379  alimony recipient who is presently able to work but for whom a
  380  medical condition with a reasonable degree of medical certainty
  381  may inhibit or prevent his or her ability to work during the
  382  duration of the alimony period. The duration of the nominal
  383  alimony shall be established within the presumptive durational
  384  range based upon the length of the marriage subject to the
  385  alimony factors in paragraph (4)(b). Before the expiration of
  386  the durational period, nominal alimony may be modified in
  387  accordance with s. 61.14 as to amount to a full alimony award
  388  using the alimony guidelines and factors in accordance with s.
  389  61.08.
  390         (7) TAXABILITY AND DEDUCTIBILITY OF ALIMONY.—
  391         (a) Unless otherwise stated in the judgment or order for
  392  alimony or in an agreement incorporated thereby, alimony shall
  393  be deductible from income by the payor under s. 215 of the
  394  Internal Revenue Code and includable in the income of the payee
  395  under s. 71 of the Internal Revenue Code.
  396         (b) When making a judgment or order for alimony, the court
  397  may, in its discretion after weighing the equities and tax
  398  efficiencies, order alimony be nondeductible from income by the
  399  payor and nonincludable in the income of the payee.
  400         (c) The parties may, in a marital settlement agreement,
  401  separation agreement, or related agreement, specifically agree
  402  in writing that alimony be nondeductible from income by the
  403  payor and nonincludable in the income of the payee.
  404         (8) MAXIMUM COMBINED AWARD.—In no event shall a combined
  405  award of alimony and child support constitute more than 55
  406  percent of the payor’s net income, calculated without any
  407  consideration of alimony or child support obligations.
  408         (9) SECURITY OF AWARD.—To the extent necessary to protect
  409  an award of alimony, the court may order any party who is
  410  ordered to pay alimony to purchase or maintain a decreasing term
  411  life insurance policy or a bond, or to otherwise secure such
  412  alimony award with any other assets that may be suitable for
  413  that purpose, in an amount adequate to secure the alimony award.
  414  Any such security may be awarded only upon a showing of special
  415  circumstances. If the court finds special circumstances and
  416  awards such security, the court must make specific evidentiary
  417  findings regarding the availability, cost, and financial impact
  418  on the obligated party. Any security may be modifiable in the
  419  event the underlying alimony award is modified and shall be
  420  reduced in an amount commensurate with any reduction in the
  421  alimony award.
  422         (10) TERMINATION OF AWARD.—An alimony award shall terminate
  423  upon the death of either party or the remarriage of the obligee.
  424         (11)MODIFICATION OF AWARD.—A court may subsequently modify
  425  or terminate the amount of an award of alimony initially
  426  established under this section in accordance with s. 61.14.
  427  However, a court may not modify the duration of an award of
  428  alimony initially established under this section.
  429         (12) PAYMENT OF AWARD.—
  430         (a) With respect to an order requiring the payment of
  431  alimony entered on or after January 1, 1985, unless paragraph
  432  (c) or paragraph (d) applies, the court shall direct in the
  433  order that the payments of alimony be made through the
  434  appropriate depository as provided in s. 61.181.
  435         (b) With respect to an order requiring the payment of
  436  alimony entered before January 1, 1985, upon the subsequent
  437  appearance, on or after that date, of one or both parties before
  438  the court having jurisdiction for the purpose of modifying or
  439  enforcing the order or in any other proceeding related to the
  440  order, or upon the application of either party, unless paragraph
  441  (c) or paragraph (d) applies, the court shall modify the terms
  442  of the order as necessary to direct that payments of alimony be
  443  made through the appropriate depository as provided in s.
  444  61.181.
  445         (c) If there is no minor child, alimony payments do not
  446  need to be directed through the depository.
  447         (d)1. If there is a minor child of the parties and both
  448  parties so request, the court may order that alimony payments do
  449  not need to be directed through the depository. In this case,
  450  the order of support shall provide, or be deemed to provide,
  451  that either party may subsequently apply to the depository to
  452  require that payments be made through the depository. The court
  453  shall provide a copy of the order to the depository.
  454         2. If subparagraph 1. applies, either party may
  455  subsequently file with the clerk of the court a verified motion
  456  alleging a default or arrearages in payment stating that the
  457  party wishes to initiate participation in the depository
  458  program. The moving party shall copy the other party with the
  459  motion. No later than 15 days after filing the motion, the court
  460  shall conduct an evidentiary hearing establishing the default
  461  and arrearages, if any, and issue an order directing the clerk
  462  of the circuit court to establish, or amend an existing, family
  463  law case history account, and further advising the parties that
  464  future payments must thereafter be directed through the
  465  depository.
  466         3. In IV-D cases, the Title IV-D agency shall have the same
  467  rights as the obligee in requesting that payments be made
  468  through the depository.
  469         Section 3. Paragraph (c) of subsection (2) and subsection
  470  (3) of section 61.13, Florida Statutes, are amended, present
  471  subsections (4) through (8) of that section are redesignated as
  472  subsections (5) through (9), respectively, and a new subsection
  473  (4) is added to that section, to read:
  474         61.13 Support of children; parenting and time-sharing;
  475  powers of court.—
  476         (2)
  477         (c) The court shall determine all matters relating to
  478  parenting and time-sharing of each minor child of the parties in
  479  accordance with the best interests of the child and in
  480  accordance with the Uniform Child Custody Jurisdiction and
  481  Enforcement Act, except that modification of a parenting plan
  482  and time-sharing schedule requires a showing of a substantial,
  483  material, and unanticipated change of circumstances.
  484         1. Absent good cause, it is the public policy of this state
  485  that the best interest of each minor child is served by a time
  486  sharing schedule that provides for substantially equal time
  487  sharing with both parents. It is the public policy of this state
  488  that each minor child has frequent and continuing contact with
  489  both parents after the parents separate or the marriage of the
  490  parties is dissolved and to encourage parents to share the
  491  rights and responsibilities, and joys, of childrearing. There is
  492  no presumption for or against the father or mother of the child
  493  or for or against any specific time-sharing schedule when
  494  creating or modifying the parenting plan of the child.
  495         2. The court shall order that the parental responsibility
  496  for a minor child be shared by both parents unless the court
  497  finds that shared parental responsibility would be detrimental
  498  to the child. Evidence that a parent has been convicted of a
  499  misdemeanor of the first degree or higher involving domestic
  500  violence, as defined in s. 741.28 and chapter 775, or meets the
  501  criteria of s. 39.806(1)(d), creates a rebuttable presumption of
  502  detriment to the child. If the presumption is not rebutted after
  503  the convicted parent is advised by the court that the
  504  presumption exists, shared parental responsibility, including
  505  time-sharing with the child, and decisions made regarding the
  506  child, may not be granted to the convicted parent. However, the
  507  convicted parent is not relieved of any obligation to provide
  508  financial support. If the court determines that shared parental
  509  responsibility would be detrimental to the child, it may order
  510  sole parental responsibility and make such arrangements for
  511  time-sharing as specified in the parenting plan as will best
  512  protect the child or abused spouse from further harm. Whether or
  513  not there is a conviction of any offense of domestic violence or
  514  child abuse or the existence of an injunction for protection
  515  against domestic violence, the court shall consider evidence of
  516  domestic violence or child abuse as evidence of detriment to the
  517  child.
  518         a. In ordering shared parental responsibility, the court
  519  may consider the expressed desires of the parents and may grant
  520  to one party the ultimate responsibility over specific aspects
  521  of the child’s welfare or may divide those responsibilities
  522  between the parties based on the best interests of the child.
  523  Areas of responsibility may include education, health care, and
  524  any other responsibilities that the court finds unique to a
  525  particular family.
  526         b. The court shall order sole parental responsibility for a
  527  minor child to one parent, with or without time-sharing with the
  528  other parent if it is in the best interests of the minor child.
  529         3. Access to records and information pertaining to a minor
  530  child, including, but not limited to, medical, dental, and
  531  school records, may not be denied to either parent. Full rights
  532  under this subparagraph apply to either parent unless a court
  533  order specifically revokes these rights, including any
  534  restrictions on these rights as provided in a domestic violence
  535  injunction. A parent having rights under this subparagraph has
  536  the same rights upon request as to form, substance, and manner
  537  of access as are available to the other parent of a child,
  538  including, without limitation, the right to in-person
  539  communication with medical, dental, and education providers.
  540         (3) For purposes of establishing or modifying parental
  541  responsibility and creating, developing, approving, or modifying
  542  a parenting plan, including a time-sharing schedule, which
  543  governs each parent’s relationship with his or her minor child
  544  and the relationship between each parent with regard to his or
  545  her minor child, the best interest of the child shall be the
  546  primary consideration. A determination of parental
  547  responsibility, a parenting plan, or a time-sharing schedule may
  548  not be modified without a showing of a substantial, material,
  549  and unanticipated change in circumstances and a determination
  550  that the modification is in the best interests of the child.
  551  Determination of the best interests of the child shall be made
  552  by evaluating all of the factors affecting the welfare and
  553  interests of the particular minor child and the circumstances of
  554  that family, including, but not limited to:
  555         (a) The demonstrated capacity or and disposition of each
  556  parent to facilitate and encourage a close and continuing
  557  parent-child relationship, to honor the time-sharing schedule,
  558  and to be reasonable when changes are required.
  559         (b) The anticipated division of parental responsibilities
  560  after the litigation, including the extent to which parental
  561  responsibilities will be delegated to third parties.
  562         (c) The demonstrated capacity and disposition of each
  563  parent to determine, consider, and act upon the needs of the
  564  child as opposed to the needs or desires of the parent.
  565         (d) The length of time the child has lived in a stable,
  566  satisfactory environment and the desirability of maintaining
  567  continuity.
  568         (e) The geographic viability of the parenting plan, with
  569  special attention paid to the needs of school-age children and
  570  the amount of time to be spent traveling to carry out effectuate
  571  the parenting plan. This factor does not create a presumption
  572  for or against relocation of either parent with a child.
  573         (f) The moral fitness of the parents.
  574         (g) The mental and physical health of the parents.
  575         (h) The home, school, and community record of the child.
  576         (i) The reasonable preference of the child, if the court
  577  deems the child to be of sufficient intelligence, understanding,
  578  and experience to express a preference.
  579         (j) The demonstrated knowledge, capacity, or and
  580  disposition of each parent to be informed of the circumstances
  581  of the minor child, including, but not limited to, the child’s
  582  friends, teachers, medical care providers, daily activities, and
  583  favorite things.
  584         (k) The demonstrated capacity or and disposition of each
  585  parent to provide a consistent routine for the child, such as
  586  discipline, and daily schedules for homework, meals, and
  587  bedtime.
  588         (l) The demonstrated capacity of each parent to communicate
  589  with the other parent and keep the other parent informed of
  590  issues and activities regarding the minor child, and the
  591  willingness of each parent to adopt a unified front on all major
  592  issues when dealing with the child.
  593         (m) Evidence of domestic violence, sexual violence, child
  594  abuse, child abandonment, or child neglect, regardless of
  595  whether a prior or pending action relating to those issues has
  596  been brought. If the court accepts evidence of prior or pending
  597  actions regarding domestic violence, sexual violence, child
  598  abuse, child abandonment, or child neglect, the court must
  599  specifically acknowledge in writing that such evidence was
  600  considered when evaluating the best interests of the child.
  601         (n) Evidence that either parent has knowingly provided
  602  false information to the court regarding any prior or pending
  603  action regarding domestic violence, sexual violence, child
  604  abuse, child abandonment, or child neglect.
  605         (o) The demonstrated capacity or disposition of each parent
  606  to perform or ensure the performance of particular parenting
  607  tasks customarily performed by the other each parent and the
  608  division of parental responsibilities before the institution of
  609  litigation and during the pending litigation, including the
  610  extent to which parenting responsibilities were undertaken by
  611  third parties.
  612         (p) The demonstrated capacity and disposition of each
  613  parent to participate and be involved in the child’s school and
  614  extracurricular activities.
  615         (q) The demonstrated capacity and disposition of each
  616  parent to maintain an environment for the child which is free
  617  from substance abuse.
  618         (r) The capacity and disposition of each parent to protect
  619  the child from the ongoing litigation as demonstrated by not
  620  discussing the litigation with the child, not sharing documents
  621  or electronic media related to the litigation with the child,
  622  and refraining from disparaging comments about the other parent
  623  to the child.
  624         (s) The developmental stages and needs of the child and the
  625  demonstrated capacity and disposition of each parent to meet the
  626  child’s developmental needs.
  627         (t) The amount of time-sharing requested by each parent.
  628         (u) The frequency that a parent would likely leave the
  629  child in the care of a nonrelative on evenings and weekends when
  630  the other parent would be available and willing to provide care.
  631         (v)(t) Any other factor that is relevant to the
  632  determination of a specific parenting plan, including the time
  633  sharing schedule.
  634         (4) A court order must be supported by written findings of
  635  fact if the order establishes an initial permanent time-sharing
  636  schedule that does not provide for substantially equal time
  637  sharing.
  638         Section 4. Subsection (1) of section 61.14, Florida
  639  Statutes, is amended to read:
  640         61.14 Enforcement and modification of support, maintenance,
  641  or alimony agreements or orders.—
  642         (1)(a) When the parties enter into an agreement for
  643  payments for, or instead of, support, maintenance, or alimony,
  644  whether in connection with a proceeding for dissolution or
  645  separate maintenance or with any voluntary property settlement,
  646  or when a party is required by court order to make any payments,
  647  and the circumstances or the financial ability of either party
  648  changes or the child who is a beneficiary of an agreement or
  649  court order as described herein reaches majority after the
  650  execution of the agreement or the rendition of the order, either
  651  party may apply to the circuit court of the circuit in which the
  652  parties, or either of them, resided at the date of the execution
  653  of the agreement or reside at the date of the application, or in
  654  which the agreement was executed or in which the order was
  655  rendered, for an order decreasing or increasing the amount of
  656  support, maintenance, or alimony, and the court has jurisdiction
  657  to make orders as equity requires, with due regard to the
  658  changed circumstances or the financial ability of the parties or
  659  the child, decreasing, increasing, or confirming the amount of
  660  separate support, maintenance, or alimony provided for in the
  661  agreement or order. However, a court may not decrease or
  662  increase the duration of alimony provided for in the agreement
  663  or order. A party is entitled to pursue an immediate
  664  modification of alimony if the actual income earned by the other
  665  party exceeds by at least 10 percent the amount imputed to that
  666  party at the time the existing alimony award was determined and
  667  such circumstance shall constitute a substantial change in
  668  circumstances sufficient to support a modification of alimony.
  669  However, an increase in an alimony obligor’s income alone does
  670  not constitute a basis for a modification to increase alimony
  671  unless at the time the alimony award was established it was
  672  determined that the obligor was underemployed or unemployed and
  673  the court did not impute income to that party at his or her
  674  maximum potential income. If an alimony obligor becomes
  675  involuntarily underemployed or unemployed for a period of 6
  676  months following the entry of the last order requiring the
  677  payment of alimony, the obligor is entitled to pursue an
  678  immediate modification of his or her existing alimony
  679  obligations and such circumstance shall constitute a substantial
  680  change in circumstance sufficient to support a modification of
  681  alimony. A finding that medical insurance is reasonably
  682  available or the child support guidelines schedule in s. 61.30
  683  may constitute changed circumstances. Except as otherwise
  684  provided in s. 61.30(11)(c), the court may modify an order of
  685  support, maintenance, or alimony by increasing or decreasing the
  686  support, maintenance, or alimony retroactively to the date of
  687  the filing of the action or supplemental action for modification
  688  as equity requires, giving due regard to the changed
  689  circumstances or the financial ability of the parties or the
  690  child.
  691         (b)1. The court may reduce or terminate an award of alimony
  692  upon specific written findings by the court that since the
  693  granting of a divorce and the award of alimony a supportive
  694  relationship exists or has existed within the previous year
  695  before the date of the filing of the petition for modification
  696  or termination between the obligee and another a person with
  697  whom the obligee resides. On the issue of whether alimony should
  698  be reduced or terminated under this paragraph, the burden is on
  699  the obligor to prove by a preponderance of the evidence that a
  700  supportive relationship exists.
  701         2. In determining whether an existing award of alimony
  702  should be reduced or terminated because of an alleged supportive
  703  relationship between an obligee and a person who is not related
  704  by consanguinity or affinity and with whom the obligee resides,
  705  the court shall elicit the nature and extent of the relationship
  706  in question. The court shall give consideration, without
  707  limitation, to circumstances, including, but not limited to, the
  708  following, in determining the relationship of an obligee to
  709  another person:
  710         a. The extent to which the obligee and the other person
  711  have held themselves out as a married couple by engaging in
  712  conduct such as using the same last name, using a common mailing
  713  address, referring to each other in terms such as “my husband”
  714  or “my wife,” “my spouse” or otherwise conducting themselves in
  715  a manner that evidences a permanent supportive relationship.
  716         b. The period of time that the obligee has resided with the
  717  other person in a permanent place of abode.
  718         c. The extent to which the obligee and the other person
  719  have pooled their assets or income or otherwise exhibited
  720  financial interdependence.
  721         d. The extent to which the obligee or the other person has
  722  supported the other, in whole or in part.
  723         e. The extent to which the obligee or the other person has
  724  performed valuable services for the other.
  725         f. The extent to which the obligee or the other person has
  726  performed valuable services for the other’s company or employer.
  727         g. Whether the obligee and the other person have worked
  728  together to create or enhance anything of value.
  729         h. Whether the obligee and the other person have jointly
  730  contributed to the purchase of any real or personal property.
  731         i. Evidence in support of a claim that the obligee and the
  732  other person have an express agreement regarding property
  733  sharing or support.
  734         j. Evidence in support of a claim that the obligee and the
  735  other person have an implied agreement regarding property
  736  sharing or support.
  737         k. Whether the obligee and the other person have provided
  738  support to the children of one another, regardless of any legal
  739  duty to do so.
  740         l. Whether the obligor’s failure, in whole or in part, to
  741  comply with all court-ordered financial obligations to the
  742  obligee constituted a significant factor in the establishment of
  743  the supportive relationship.
  744         3. In any proceeding to modify an alimony award based upon
  745  a supportive relationship, the obligor has the burden of proof
  746  to establish, by a preponderance of the evidence, that a
  747  supportive relationship exists or has existed within the
  748  previous year before the date of the filing of the petition for
  749  modification or termination. The obligor is not required to
  750  prove cohabitation of the obligee and the third party.
  751         4. Notwithstanding paragraph (f), if a reduction or
  752  termination is granted under this paragraph, the reduction or
  753  termination is retroactive to the date of filing of the petition
  754  for reduction or termination.
  755         5.3. This paragraph does not abrogate the requirement that
  756  every marriage in this state be solemnized under a license, does
  757  not recognize a common law marriage as valid, and does not
  758  recognize a de facto marriage. This paragraph recognizes only
  759  that relationships do exist that provide economic support
  760  equivalent to a marriage and that alimony terminable on
  761  remarriage may be reduced or terminated upon the establishment
  762  of equivalent equitable circumstances as described in this
  763  paragraph. The existence of a conjugal relationship, though it
  764  may be relevant to the nature and extent of the relationship, is
  765  not necessary for the application of the provisions of this
  766  paragraph.
  767         (c)1. For purposes of this section, the remarriage of an
  768  alimony obligor does not constitute a substantial change in
  769  circumstance or a basis for a modification of alimony.
  770         2. The financial information, including, but not limited
  771  to, information related to assets and income, of a subsequent
  772  spouse of a party paying or receiving alimony is inadmissible
  773  and may not be considered as a part of any modification action
  774  unless a party is claiming that his or her income has decreased
  775  since the marriage. If a party makes such a claim, the financial
  776  information of the subsequent spouse is discoverable and
  777  admissible only to the extent necessary to establish whether the
  778  party claiming that his or her income has decreased is diverting
  779  income or assets to the subsequent spouse that might otherwise
  780  be available for the payment of alimony. However, this
  781  subparagraph may not be used to prevent the discovery of or
  782  admissibility in evidence of the income or assets of a party
  783  when those assets are held jointly with a subsequent spouse.
  784  This subparagraph is not intended to prohibit the discovery or
  785  admissibility of a joint tax return filed by a party and his or
  786  her subsequent spouse in connection with a modification of
  787  alimony.
  788         (d)1. An obligor may file a petition for modification or
  789  termination of an alimony award based upon his or her actual
  790  retirement.
  791         a. A substantial change in circumstance is deemed to exist
  792  if:
  793         (I) The obligor has reached the age for eligibility to
  794  receive full retirement benefits under s. 216 of the Social
  795  Security Act, 42 U.S.C. s. 416, and has retired; or
  796         (II) The obligor has reached the customary retirement age
  797  for his or her occupation and has retired from that occupation.
  798  An obligor may file an action within 1 year of his or her
  799  anticipated retirement date and the court shall determine the
  800  customary retirement date for the obligor’s profession. However,
  801  a determination of the customary retirement age is not an
  802  adjudication of a petition for a modification of an alimony
  803  award.
  804         b. If an obligor voluntarily retires before reaching any of
  805  the ages described in sub-subparagraph a., the court shall
  806  determine whether the obligor’s retirement is reasonable upon
  807  consideration of the obligor’s age, health, and motivation for
  808  retirement and the financial impact on the obligee. A finding of
  809  reasonableness by the court shall constitute a substantial
  810  change in circumstance.
  811         2. Upon a finding of a substantial change in circumstance,
  812  there is a rebuttable presumption that an obligor’s existing
  813  alimony obligation shall be modified or terminated. The court
  814  shall modify or terminate the alimony obligation, or make a
  815  determination regarding whether the rebuttable presumption has
  816  been overcome, based upon the following factors applied to the
  817  current circumstances of the obligor and obligee:
  818         a. The age of the parties.
  819         b. The health of the parties.
  820         c. The assets and liabilities of the parties.
  821         d. The earned or imputed income of the parties as provided
  822  in s. 61.08(1)(a) and (5).
  823         e. The ability of the parties to maintain part-time or
  824  full-time employment.
  825         f. Any other factor deemed relevant by the court.
  826         3. The court may temporarily reduce or suspend the
  827  obligor’s payment of alimony while his or her petition for
  828  modification or termination under this paragraph is pending.
  829         (e) A party who unreasonably pursues or defends an action
  830  for modification of alimony shall be required to pay the
  831  reasonable attorney fees and costs of the prevailing party.
  832  Further, a party obligated to pay prevailing party attorney fees
  833  and costs in connection with unreasonably pursuing or defending
  834  an action for modification is not entitled to an award of
  835  attorney fees and costs in accordance with s. 61.16.
  836         (f) There is a rebuttable presumption that a modification
  837  or termination of an alimony award is retroactive to the date of
  838  the filing of the petition, unless the obligee demonstrates that
  839  the result is inequitable.
  840         (g)(c) For each support order reviewed by the department as
  841  required by s. 409.2564(11), if the amount of the child support
  842  award under the order differs by at least 10 percent but not
  843  less than $25 from the amount that would be awarded under s.
  844  61.30, the department shall seek to have the order modified and
  845  any modification shall be made without a requirement for proof
  846  or showing of a change in circumstances.
  847         (h)(d) The department may shall have authority to adopt
  848  rules to implement this section.
  849         Section 5. Paragraph (d) is added to subsection (11) of
  850  section 61.30, Florida Statutes, to read:
  851         61.30 Child support guidelines; retroactive child support.—
  852         (11)
  853         (d) Whenever a combined alimony and child support award
  854  constitutes more than 55 percent of the payor’s net income,
  855  calculated without any consideration of alimony or child support
  856  obligations, the court shall adjust the award of child support
  857  to ensure that the 55 percent cap is not exceeded.
  858         Section 6. Section 61.192, Florida Statutes, is created to
  859  read:
  860         61.192 Advancing trial.—In an action brought pursuant to
  861  this chapter, if more than 2 years have passed since the initial
  862  petition was served on the respondent, either party may move the
  863  court to advance the trial of their action on the docket. This
  864  motion may be made at any time after 2 years have passed since
  865  the petition was served, and once made the court must give the
  866  case priority on the court’s calendar.
  867         Section 7. Subsection (1) of section 61.1827, Florida
  868  Statutes, is amended to read:
  869         61.1827 Identifying information concerning applicants for
  870  and recipients of child support services.—
  871         (1) Any information that reveals the identity of applicants
  872  for or recipients of child support services, including the name,
  873  address, and telephone number of such persons, held by a non
  874  Title IV-D county child support enforcement agency is
  875  confidential and exempt from s. 119.07(1) and s. 24(a) of Art. I
  876  of the State Constitution. The use or disclosure of such
  877  information by the non-Title IV-D county child support
  878  enforcement agency is limited to the purposes directly connected
  879  with:
  880         (a) Any investigation, prosecution, or criminal or civil
  881  proceeding connected with the administration of any non-Title
  882  IV-D county child support enforcement program;
  883         (b) Mandatory disclosure of identifying and location
  884  information as provided in s. 61.13(8) s. 61.13(7) by the non
  885  Title IV-D county child support enforcement agency when
  886  providing non-Title IV-D services;
  887         (c) Mandatory disclosure of information as required by ss.
  888  409.2577, 61.181, 61.1825, and 61.1826 and Title IV-D of the
  889  Social Security Act; or
  890         (d) Disclosure to an authorized person, as defined in 45
  891  C.F.R. s. 303.15, for purposes of enforcing any state or federal
  892  law with respect to the unlawful taking or restraint of a child
  893  or making or enforcing a parenting plan. As used in this
  894  paragraph, the term “authorized person” includes a parent with
  895  whom the child does not currently reside, unless a court has
  896  entered an order under s. 741.30, s. 741.31, or s. 784.046.
  897         Section 8. Subsection (1) of section 409.2579, Florida
  898  Statutes, is amended to read:
  899         409.2579 Safeguarding Title IV-D case file information.—
  900         (1) Information concerning applicants for or recipients of
  901  Title IV-D child support services is confidential and exempt
  902  from the provisions of s. 119.07(1). The use or disclosure of
  903  such information by the IV-D program is limited to purposes
  904  directly connected with:
  905         (a) The administration of the plan or program approved
  906  under part A, part B, part D, part E, or part F of Title IV;
  907  under Title II, Title X, Title XIV, Title XVI, Title XIX, or
  908  Title XX; or under the supplemental security income program
  909  established under Title XVI of the Social Security Act;
  910         (b) Any investigation, prosecution, or criminal or civil
  911  proceeding connected with the administration of any such plan or
  912  program;
  913         (c) The administration of any other federal or federally
  914  assisted program which provides service or assistance, in cash
  915  or in kind, directly to individuals on the basis of need;
  916         (d) Reporting to an appropriate agency or official,
  917  information on known or suspected instances of physical or
  918  mental injury, child abuse, sexual abuse or exploitation, or
  919  negligent treatment or maltreatment of a child who is the
  920  subject of a support enforcement activity under circumstances
  921  which indicate that the child’s health or welfare is threatened
  922  thereby; and
  923         (e) Mandatory disclosure of identifying and location
  924  information as provided in s. 61.13(8) s. 61.13(7) by the IV-D
  925  program when providing Title IV-D services.
  926         Section 9. The amendments made by this act to chapter 61,
  927  Florida Statutes, apply to all initial determinations of alimony
  928  and all alimony modification actions that are pending as of the
  929  effective date of this act, and to all initial determinations of
  930  alimony and all alimony modification actions brought on or after
  931  the effective date of this act. The enacting of this act may not
  932  serve as the sole basis for a party to seek a modification of an
  933  alimony award existing before the effective date of this act.
  934         Section 10. This act shall take effect October 1, 2016.

 

 

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