Bill Text: FL S0748 | 2012 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Dissolution of Marriage

Spectrum: Bipartisan Bill

Status: (Failed) 2012-03-09 - Died in Rules [S0748 Detail]

Download: Florida-2012-S0748-Introduced.html

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       Florida Senate - 2012                                     SB 748
       
       
       
       By Senator Diaz de la Portilla
       
       
       
       
       36-00747-12                                            2012748__
    1                        A bill to be entitled                      
    2         An act relating to alimony; amending s. 61.08, F.S.;
    3         revising factors to be considered for alimony awards;
    4         capping awards of alimony at a certain percentage of
    5         the payor’s monthly net income; requiring a court to
    6         make certain written findings concerning alimony;
    7         revising factors to be considered in whether to award
    8         alimony or maintenance; revising provisions for the
    9         tax treatment and consequences of alimony; revising
   10         provisions relating to the protection of awards of
   11         alimony; revising provisions for awards of bridge-the
   12         gap alimony and durational alimony; redesignating
   13         permanent alimony as long-term alimony and revising
   14         provisions relating to its award; providing
   15         nonreinstatement of alimony awards due to supportive
   16         relationships; providing termination of alimony upon
   17         full retirement age; repealing s. 2, ch. 2010-199 and
   18         s. 80, ch. 2011-92, Laws of Florida, relating to the
   19         applicability of specified prior amendments to s.
   20         61.08, F.S.; providing applicability for amendments
   21         made by the act to s. 61.08, F.S.; providing for
   22         retroactive effect; amending s. 61.14, F.S.; revising
   23         provisions relating to the effect of cohabitation on
   24         an award of alimony; providing that in the event of
   25         the obligor’s remarriage or residing with another
   26         person, income and assets of the obligor’s spouse or
   27         person with whom the obligor resides may not be
   28         considered in the redetermination in a modification
   29         action; providing that if an alimony award has been
   30         modified to terminate due to a supportive relationship
   31         and that supportive relationship does not produce a
   32         marriage, the alimony may not be reinstated; providing
   33         that if the court orders alimony concurrent with a
   34         child support order, the alimony award may not be
   35         modified due to the termination of child support;
   36         providing an effective date.
   37  
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Section 61.08, Florida Statutes, is amended to
   41  read:
   42         61.08 Alimony.—
   43         (1) In a proceeding for dissolution of marriage under s.
   44  61.052(1)(a), the court may grant alimony to either party, which
   45  alimony may be bridge-the-gap, rehabilitative, durational, or
   46  long-term permanent in nature or any combination of these forms
   47  of alimony. In any award of alimony, the court may order
   48  periodic payments or payments in lump sum or both, which may not
   49  exceed 20 percent of the payor’s monthly net income to include
   50  all sources of income averaged over the last 3 years of the
   51  marriage. The court may consider the adultery of either spouse
   52  and the circumstances thereof in determining the amount of
   53  alimony, if any, to be awarded. In all dissolution actions, the
   54  court shall include findings of fact relative to the factors
   55  enumerated in subsection (2) supporting an award or denial of
   56  alimony.
   57         (2) In determining whether to award alimony or maintenance,
   58  the court shall first make, in writing, a specific factual
   59  determination as to whether either party has an actual need for
   60  alimony or maintenance and whether either party has the ability
   61  to pay alimony or maintenance. If the court finds that a party
   62  has a need for alimony or maintenance and that the other party
   63  has the ability to pay alimony or maintenance, then in
   64  determining the proper type and amount of alimony or maintenance
   65  under subsections (5)-(8), the court shall consider all relevant
   66  factors, including, but not limited to:
   67         (a) The standard of living established during the marriage.
   68         (a)(b) The duration of the marriage.
   69         (b)(c) The age and the physical and emotional condition of
   70  each party.
   71         (c)(d) The financial resources of each party, only to
   72  include including the nonmarital and the marital assets and
   73  liabilities acquired during the marriage distributed to each.
   74         (d)(e) The earning capacities, educational levels,
   75  vocational skills, and employability of the parties and, when
   76  applicable, the time necessary for either party to acquire
   77  sufficient education or training to enable such party to find
   78  appropriate employment.
   79         (e)(f) The contribution of each party to the marriage,
   80  including, but not limited to, services rendered in homemaking,
   81  child care, education, and career building of the other party.
   82         (f)(g) The responsibilities each party will have with
   83  regard to any minor children they have in common.
   84         (g)(h) The tax treatment and consequences to both parties
   85  of any alimony award, including the designation of all or a
   86  portion of the payment as taxable to the recipient and
   87  deductible to the payor a nontaxable, nondeductible payment.
   88         (h)(i) All sources of income available to either party,
   89  including income available to either party through investments
   90  of any asset held by that party that were acquired during the
   91  marriage.
   92         (j) Any other factor necessary to do equity and justice
   93  between the parties.
   94         (3)(a) The court may require the payor to maintain a life
   95  insurance policy or bond to protect an award of alimony only if
   96  there is a specific factual determination in writing as to
   97  whether the recipient has an actual need. An order to secure a
   98  life insurance policy or a bond to protect an award of alimony
   99  shall be based upon due consideration of the following factors:
  100         1. Age and insurability of the payor.
  101         2. Cost of insurance, including decreasing term-life
  102  insurance.
  103         3. Amount of the judgment.
  104         4. Polices carried during the marriage.
  105         5. Duration of the alimony order.
  106         6. Prevailing interest rates at the time of the order.
  107         7. Other obligations of the payor.
  108         (b) An order to protect an alimony award is modifiable upon
  109  a substantial change in circumstance in accordance with s. 61.14
  110  and terminates as provided in subsection (9) To the extent
  111  necessary to protect an award of alimony, the court may order
  112  any party who is ordered to pay alimony to purchase or maintain
  113  a life insurance policy or a bond, or to otherwise secure such
  114  alimony award with any other assets which may be suitable for
  115  that purpose.
  116         (4) For purposes of determining alimony, the court shall
  117  recognize there is a rebuttable presumption that a short-term
  118  marriage is a marriage having a duration of less than 7 years, a
  119  moderate-term marriage is a marriage having a duration of
  120  greater than 7 years but less than 20 17 years, and long-term
  121  marriage is a marriage having a duration of 20 17 years or
  122  greater. The length of a marriage is the period of time from the
  123  date of marriage until the date of filing of an action for
  124  dissolution of marriage.
  125         (5) Bridge-the-gap alimony may be awarded to assist a party
  126  by providing support to allow the party to make a transition
  127  from being married to being single. Bridge-the-gap alimony is
  128  designed to assist a party with legitimate identifiable short
  129  term needs, and the length of an award may not exceed 2 years.
  130  An award of bridge-the-gap alimony terminates upon the death of
  131  either party or upon the remarriage of the party receiving
  132  alimony. An award of bridge-the-gap alimony is shall not be
  133  modifiable in accordance with s. 61.14 amount or duration.
  134         (6)(a) Rehabilitative alimony may be awarded to assist a
  135  party in establishing the capacity for self-support through
  136  either:
  137         1. The redevelopment of previous skills or credentials; or
  138         2. The acquisition of education, training, or work
  139  experience necessary to develop appropriate employment skills or
  140  credentials.
  141         (b) In order to award rehabilitative alimony, there must be
  142  a specific and defined rehabilitative plan which shall be
  143  included as a part of any order awarding rehabilitative alimony.
  144         (c) An award of rehabilitative alimony shall may be
  145  modified or terminated in accordance with s. 61.14 based upon a
  146  substantial change in circumstances, upon noncompliance with the
  147  rehabilitative plan, or upon completion of the rehabilitative
  148  plan.
  149         (7) Durational alimony may be awarded for a moderate-term
  150  or long-term marriage as defined in subsection (4) when
  151  permanent periodic alimony is inappropriate. The purpose of
  152  durational alimony is to provide a party with economic
  153  assistance for a set period of time following a marriage of
  154  short or moderate duration or following a marriage of long
  155  duration if there is no ongoing need for support on a long-term
  156  permanent basis as provided in subsection (8). An award of
  157  durational alimony terminates upon the death of either party or
  158  upon the remarriage of the party receiving alimony. The amount
  159  of an award of durational alimony shall may be modified or
  160  terminated based upon a substantial change in circumstances or
  161  terminated upon the existence of a supportive relationship in
  162  accordance with s. 61.14. However, The length of an award of
  163  durational alimony may not exceed 50 percent of be modified
  164  except under exceptional circumstances and may not exceed the
  165  length of the marriage.
  166         (8) Long-term Permanent alimony may be awarded for a
  167  marriage having a duration of 20 years or greater as provided in
  168  subsection (4), may not exceed 60 percent of the length of the
  169  marriage, and may be extended as needed to continue support of a
  170  receiving party who was disabled during the marriage. The
  171  Division of Disability Determinations of the Department of
  172  Health must authenticate each claim of disability under this
  173  subsection. If the payor is certified as disabled by the
  174  Division of Disability Determinations of the Department of
  175  Health, the award of alimony shall be significantly reduced or
  176  terminated to provide for the needs and necessities of life as
  177  they were established during the marriage of the parties for a
  178  party who lacks the financial ability to meet his or her needs
  179  and necessities of life following a dissolution of marriage.
  180  Permanent alimony may be awarded following a marriage of long
  181  duration if such an award is appropriate upon consideration of
  182  the factors set forth in subsection (2), following a marriage of
  183  moderate duration if such an award is appropriate based upon
  184  clear and convincing evidence after consideration of the factors
  185  set forth in subsection (2), or following a marriage of short
  186  duration if there are written findings of exceptional
  187  circumstances. In awarding permanent alimony, the court shall
  188  include a finding that no other form of alimony is fair and
  189  reasonable under the circumstances of the parties. An award of
  190  long-term permanent alimony terminates upon the death of either
  191  party, or upon the remarriage of the party receiving alimony, or
  192  as provided in subsection (9). An award shall may be modified or
  193  terminated based upon a substantial change in circumstances or
  194  upon the existence of a supportive relationship in accordance
  195  with s. 61.14.
  196         (9) Any award of alimony terminates upon the payor
  197  attaining the full retirement age when the payor is eligible for
  198  the old-age retirement benefit under the federal Old-Age,
  199  Survivors, and Disability Insurance Program, 42 U.S.C. s. 416,
  200  as amended, as of the date of filing of an action for
  201  dissolution of marriage. The payor’s ability to work beyond that
  202  age may not be used as a reason to extend alimony.
  203         (10)(9) The award of alimony may not leave the payor with
  204  significantly less net income than the net income of the
  205  recipient unless there are written findings of exceptional
  206  circumstances.
  207         (11) In accordance with s. 61.14, if an alimony award has
  208  been modified to terminate due to a supportive relationship and
  209  that supportive relationship does not produce a marriage, the
  210  recipient is not entitled to reinstatement of alimony from the
  211  payor.
  212         (12)(10)(a) With respect to any order requiring the payment
  213  of alimony entered on or after January 1, 1985, unless the
  214  provisions of paragraph (c) or paragraph (d) apply, the court
  215  shall direct in the order that the payments of alimony be made
  216  through the appropriate depository as provided in s. 61.181.
  217         (b) With respect to any order requiring the payment of
  218  alimony entered before January 1, 1985, upon the subsequent
  219  appearance, on or after that date, of one or both parties before
  220  the court having jurisdiction for the purpose of modifying or
  221  enforcing the order or in any other proceeding related to the
  222  order, or upon the application of either party, unless the
  223  provisions of paragraph (c) or paragraph (d) apply, the court
  224  shall modify the terms of the order as necessary to direct that
  225  payments of alimony be made through the appropriate depository
  226  as provided in s. 61.181.
  227         (c) If there is no minor child, alimony payments need not
  228  be directed through the depository.
  229         (d)1. If there is a minor child of the parties and both
  230  parties so request, the court may order that alimony payments
  231  need not be directed through the depository. In this case, the
  232  order of support shall provide, or be deemed to provide, that
  233  either party may subsequently apply to the depository to require
  234  that payments be made through the depository. The court shall
  235  provide a copy of the order to the depository.
  236         2. If the provisions of subparagraph 1. apply, either party
  237  may subsequently file with the depository an affidavit alleging
  238  default or arrearages in payment and stating that the party
  239  wishes to initiate participation in the depository program. The
  240  party shall provide copies of the affidavit to the court and the
  241  other party or parties. Fifteen days after receipt of the
  242  affidavit, the depository shall notify all parties that future
  243  payments shall be directed to the depository.
  244         3. In IV-D cases, the IV-D agency shall have the same
  245  rights as the obligee in requesting that payments be made
  246  through the depository.
  247         Section 2. Section 2 of chapter 2010-199 and section 80 of
  248  chapter 2011-92, Laws of Florida, are repealed.
  249         Section 3. The amendments to s. 61.08, Florida Statutes,
  250  made by this act constitute a material change of circumstance
  251  that warrants modification of existing alimony judgments that
  252  exceed durational limits set forth in s. 61.08(4)-(9), Florida
  253  Statutes, as amended by this act. Any modification filed by a
  254  payor pursuant to this section solely because the existing
  255  alimony judgment exceeds the durational limits set forth in s.
  256  61.08(4)-(9), Florida Statutes, as amended by this act, may be
  257  filed only as follows:
  258         (1) A payor who was married to the alimony recipient for
  259  more than 7 years may file a modification action in accordance
  260  with s. 61.08(4), Florida Statutes, no earlier than 2 years
  261  after the effective date of this act.
  262         (2) A payor who is eligible for the full old-age retirement
  263  benefit under the federal Old-Age, Survivors, and Disability
  264  Insurance Program, 42 U.S.C. s. 416, or who will become eligible
  265  for such benefit within 3 years after the effective date of this
  266  act, may file a modification action no earlier than 1 year after
  267  the effective date of this act.
  268  
  269  The amendments to s. 61.08, Florida Statutes, made by this act
  270  do not provide a right to seek or receive modification of an
  271  existing alimony judgment in which the parties have agreed in
  272  writing that their alimony judgment is not modifiable or in
  273  which the parties have expressed in writing their intention that
  274  their agreed alimony provisions survive the judgment and
  275  therefore are not modifiable.
  276         Section 4. Paragraph (b) of subsection (1) of section
  277  61.14, Florida Statutes, is amended, and paragraphs (c), (d),
  278  and (e) are added to subsection (11) of that section, to read:
  279         61.14 Enforcement and modification of support, maintenance,
  280  or alimony agreements or orders.—
  281         (1)
  282         (b)1. The court must may reduce or terminate an award of
  283  alimony if it determines upon specific written findings by the
  284  court that since the granting of a divorce and the award of
  285  alimony a supportive relationship has existed between the
  286  obligee and a person with whom the obligee resides. The court
  287  shall make specific written findings that support such a
  288  determination. On the issue of whether alimony should be reduced
  289  or terminated under this paragraph, the burden is on the obligor
  290  to prove by a preponderance of the evidence that a supportive
  291  relationship exists.
  292         2. A person is deemed to maintain a supportive relationship
  293  when he or she shares a primary residence together with or
  294  without another person for a period of at least 3 continuous
  295  months in a common household. In determining whether the obligee
  296  is maintaining a common household, the court may consider any of
  297  the following factors an existing award of alimony should be
  298  reduced or terminated because of an alleged supportive
  299  relationship between an obligee and a person who is not related
  300  by consanguinity or affinity and with whom the obligee resides,
  301  the court shall elicit the nature and extent of the relationship
  302  in question. The court shall give consideration, without
  303  limitation, to circumstances, including, but not limited to, the
  304  following, in determining the relationship of an obligee to
  305  another person:
  306         a. Oral or written statements or representations made to
  307  third parties regarding the relationship of the cohabitants.
  308         b. The economic interdependence of the couple or economic
  309  dependence of one party on the other.
  310         c. The common household couple engaging in conduct and
  311  collaborative roles in furtherance of their life together.
  312         d. The benefit in the life of either or both of the common
  313  household parties from their relationship.
  314         e. The community reputation of the parties as a couple.
  315         f. Other relevant and material factors.
  316         a. The extent to which the obligee and the other person
  317  have held themselves out as a married couple by engaging in
  318  conduct such as using the same last name, using a common mailing
  319  address, referring to each other in terms such as “my husband”
  320  or “my wife,” or otherwise conducting themselves in a manner
  321  that evidences a permanent supportive relationship.
  322         b. The period of time that the obligee has resided with the
  323  other person in a permanent place of abode.
  324         c. The extent to which the obligee and the other person
  325  have pooled their assets or income or otherwise exhibited
  326  financial interdependence.
  327         d. The extent to which the obligee or the other person has
  328  supported the other, in whole or in part.
  329         e. The extent to which the obligee or the other person has
  330  performed valuable services for the other.
  331         f. The extent to which the obligee or the other person has
  332  performed valuable services for the other’s company or employer.
  333         g. Whether the obligee and the other person have worked
  334  together to create or enhance anything of value.
  335         h. Whether the obligee and the other person have jointly
  336  contributed to the purchase of any real or personal property.
  337         i. Evidence in support of a claim that the obligee and the
  338  other person have an express agreement regarding property
  339  sharing or support.
  340         j. Evidence in support of a claim that the obligee and the
  341  other person have an implied agreement regarding property
  342  sharing or support.
  343         k. Whether the obligee and the other person have provided
  344  support to the children of one another, regardless of any legal
  345  duty to do so.
  346         3. This paragraph does not abrogate the requirement that
  347  every marriage in this state be solemnized under a license, does
  348  not recognize a common law marriage as valid, and does not
  349  recognize a de facto marriage. This paragraph recognizes only
  350  that relationships do exist that provide economic support
  351  equivalent to a marriage and that alimony terminable on
  352  remarriage may be reduced or terminated upon the establishment
  353  of equivalent equitable circumstances as described in this
  354  paragraph. The existence of a conjugal relationship, though it
  355  may be relevant to the nature and extent of the relationship, is
  356  not necessary for the application of the provisions of this
  357  paragraph.
  358         (11)
  359         (c) If the obligor remarries or resides with another
  360  person, income and assets of the obligor’s spouse or person with
  361  whom the obligor resides may not be considered in the
  362  redetermination in a modification action.
  363         (d) If an alimony award has been modified to terminate due
  364  to a supportive relationship and that supportive relationship
  365  does not produce a marriage, the obligee is not entitled to
  366  reinstatement of alimony from the obligor.
  367         (e) If the court orders alimony concurrent with a child
  368  support order, the alimony award may not be modified due to the
  369  termination of child support when the child support payments
  370  end.
  371         Section 5. This act shall take effect July 1, 2012.