Changes to Alimony and Length of the Marriage

August 10, 2010

In my previous two posts I discussed important changes to alimony and child support that will be implemented based on the passage of House Bill 907. Another critical change is that House Bill 907 now strictly defined the length of each marriage.

I discussed length of a marriage and its impact on alimony in a previous post. As I stated, each jurisdiction in Floida has defined a short term marriage, gray area marriage and long term marriage with various lengths of time. A short term marriage could be defined as 3 years in one jurisdiction and up to 7 years in another. Some jurisdictions believe a long term marriage may start at 15 years while other believe a marriage is not long term until 17 years have passed. There is a presumption for permanent alimony in a long term marriage, therefore these inconsistencies throughout the state has caused substantial litigation and dueling precedents. House Bill 907 has now followed other states by strictly defining a short term, midterm and long term marriage.

Beginning immediately, a short term marriage shall now be defined as any marriage lasting up to 7 years in duration. Any marriage lasting between 7 years and 17 years shall be deemed a “midterm marriage” instead of a “gray area marriage”. A long term marriage will be any marriage lasting from 17 years and beyond. These guidelines will eliminate any confusion regarding how to characterize a marriage and will assist lawyers and judges in attaching the appropriate alimony award. Some states attach a definitive alimony award to each marriage term, Florida has not gone that far as of yet.

Important Information Regarding Alimony

July 13, 2010

As stated in my previous post, Governor Charlie Crist has signed into law House Bill 907. House Bill 907 not only deals with child support, it also introduces a new law regarding alimony. As it stands today, a judge may award four basic forms of alimony; lump sum, bridge the gap, rehabilitative and permanent alimony. Bridge the gap and rehabilitative alimony are generally short in duration where as permanent alimony lasts forever. As you can see, the discrepancy in length of time for various alimony awards is extreme.

There are often cases where a judge may not believe a party is entitled to permanent alimony but the party may require an extended period of alimony to help transition into single life or to care for the children. In these types of cases a judge’s hands are tied and they must decided whether to grant alimony that lasts forever, or only for a couple years. Whatever the judge decides each side will feel they got the short end of the stick and it will inevitably lead to an appeal.

House Bill 907 has introduced a new form of alimony called, “Durational Alimony”. Durational Alimony allows the judge to decide exactly how long alimony will last. After this law goes into effect, the judge will have many more options when making a decision on the length of alimony. I believe that this new form of alimony will reduce the amount of permanent alimony awards, and that may be the intent of the law. I also believe that this will reduce the amount of appeals pertaining to alimony awards. If a party requests permanent alimony and they are awarded 10 years, I believe it will be much less likely they will appeal that ruling then if they were awarded 2 years of bridge the gap alimony.

It will of course take time to determine exactly how much of an impact this law will have on the amount of litigation in family law cases, but it is a positive step that the judges will now have many more options than they once did. Be sure to address this change of law with your attorney upon initiating a divorce proceeding.

Important Information Regarding Your Child Support

June 21, 2010

On June 3, 2010 Governor Charlie Christ signed into law House Bill 907 . House Bill 907 contains several changes to the laws that govern divorce. The most important change pertains to child support and what is considered substantial timesharing.

As the law stands now, in order to get a reduction in child support the parent who is paying child support (“payor”) must have 40% or more of the overnights with their child(ren). If the payor parent obtains 40%of the overnights, the courts will apply; “the gross up method”. The gross up method is an additional calculation to the support guidelines that results in a substantial reduction in the payor’s child support obligation.

House Bill 907 has reduced the substantial timesharing number from 40% or greater to 20% or greater. The reason for this change is that the 40% threshold caused endless litigation. In the past the typical payor spouse would obtain a model timesharing arrangement which provided for approximately 30-35% of the overnights with their child(ren). Because the payor would only need to take on a few more overnights to obtain the 40% threshold, the payor would frequently go to court to try and fight for that reduction in child support. On the other hand, the spouse receiving child support (“payee”) did not want to give up overnights with the child(ren) in fear their child support would be greatly reduced. It can be said that parents were trying to obtain additional time with their children due to financial concerns resulting in needless litigation involving the children. This bill is another attempt by the Florida legislature to reduce litigation amongst families. Since it is very rare a parent will not have greater than 20% of the overnights with their child, the result of House Bill 907 will likely be a substantial reduction in child support across the board.

It appears as if this law will go into effect on January 1, 2011. Please consult an attorney to discuss whether you may or may not be entitled to a reduction in your child support or if you should expect the payor to make a claim for a reduction in child support.

Parenting Plans

May 10, 2010

When it comes to dealing with parenting issues in divorce cases, Florida is now recognized as one of the more progressive states in America. Florida recently eliminated the terms custody and visitation from the statutes. Instead of custody, the courts now use parenting plans and instead of visitation the courts use the term “timesharing”. Please see Florida Statute 61.13 which deals with parenting plans and timesharing. Click here to see an example of a Florida Supreme Court Parenting Plan.

No longer can a party go before a judge requesting a change in custody, they must request to establish a parenting plan or to modify an existing parenting plan. In addition, the courts have eliminated the use of primary and secondary parent as a term to describe the parties. All of these changes were geared towards lessening the amount of litigation involving families. Parties did not want to have “visitation” with their own children, nor did they want to be referred to as a secondary parent. The changes to Florida parenting laws are fairly new so the jury is still out as to whether they have had the impact the legislature intended.

Part II: Motion Calendar in Palm Beach, Broward and Miami-Dade Counties

April 25, 2010

If you have gone through a divorce or been involved in a litigation, you have likely heard the term, “Motion Calendar”, from your attorney. Throughout any litigation, whether it is a divorce or any other type of case, lawyers often bring written motions in front of the judge. These motions are based on a disagreement between the parties and the lawyers are requesting that the judge settle the dispute either based on facts or law. Motion calendar refers to a time set aside in the morning for the lawyers to appear in front of the judge to argue their motions. Motions reserved for motion calendar are small in nature as time is limited to five minutes per motion. The court will not take testimony, nor will any evidence be presented. Lawyers can typically get their motion heard within five business days of the filing of the motion.

If a party has a dispute that needs to be resolved through the use of testimony or through the introduction of evidence, the court requires lawyers to appear at an evidentiary hearing. Evidentiary hearings may last anywhere from 15 minutes to many hours. Depending on the lenght of the hearing and the judge, a party may wait anywhere from 20- 90 days to have their evidentiary motion heard.

Another distinction between divorce proceedings in Palm Beach, Broward and Miami-Dade counties is how motion calendar is handled. In Palm Beach County judges typically permit motions to be heard at 8:45am on Tuesday, Wednesday and Thursday. Broward County has similar days and times for motion calendar, however; Broward County has recently implemented electronic filing. Electronic filing has improved the efficiency of the Broward courts and how they conduct motion calendar.

Miami-Dade County is distinct from the other counties as they do not hold motion calendar three days a week. Some of the judges in Miami-Dade County have motion calendar once every two weeks, while some have it once a week. This is important because parties may not be able to resolve a simple dispute quickly by not having access to the courts. On the other hand, by not making the courts available, parties will be forced to settle their problems outside the courthouse. By having frequent motion calendar, Broward and Palm Beach Counties may be encouraging a party to rely on the court to settle their disputes thereby increasing the costs and the animosity involved with the divorce.

Part I: Divorce in Palm Beach County

March 16, 2010

In my upcoming posts I will explore some of the key differences between the divorce process in Palm Beach, Broward and Miami-Dade Counties. My post this week will focus on Palm Beach County. If for example the parties to a divorce reside in Boca Raton, West Palm Beach or Palm Beach Gardens (aside from certain extenuating circumstances), the parties must file for dissolution of marriage in Palm Beach County. Depending on what city the parties reside in, that will dictate whether their case will be heard in the South County Courthouse in Delray Beach, the Main Courthouse in West Palm Beach or the North County Courthouse in Palm Beach Gardens. Sometimes residency can be a complicated issue especially in a transient area such as South Florida. Speak to an attorney before filing a divorce action. If you have only resided on the state or county for a short period of time, the courts may not agree with you about your actual legal residency.

One of the key procedural differences in a Palm Beach County divorce as opposed to a divorce in other counties is, temporary relief. A party commonly requests temporary relief if they have a need for alimony, child support or attorney’s fees during their pending divorce action. Temporary relief is often extremely contentious and eats up a large chunk of the courts time. Broward and Miami-Dade counties will often entertain a party’s motion for temporary relief without the parties attending mediation. In addition, temporary relief hearings in Broward and Miami-Dade counties can last hours and sometimes days. In Palm Beach County however, the courts will not hear a motion for temporary relief until the parties have attempted to mediate their matter. Palm Beach County also limits temporary relief hearings to one half hour.

The purpose of the temporary relief rule in Palm Beach County is to cut down on needless litigation and time consuming hearings. Another benefit of this rule is that by requiring the parties to go to mediation before stepping into a courtroom, many parties will be able to settle all of their issues not just temporary relief matters.

Factors in Determining Alimony, Part IV: “Help! My Spouse Was Fired, Will I Get Any Alimony?”

March 02, 2010

In this day and age, with unemployment as high as it is, many clients are fearful that they will not get alimony because their spouse is unemployed.  However, when the courts determine alimony they look at the reason why the spouse is unemployed and the facts surrounding it.  When someone is unemployed because they were laid off or for any other reason that is no fault of their own, the courts will take that into consideration and award a reduced amount of alimony under the circumstances.  On the other hand, if a spouse has voluntarily left their job or if they were fired because of their own actions, the courts are much less sympathetic.

If a spouse leaves their job voluntarily while they are going through a divorce, it gives the appearance that the spouse is blatantly trying to avoid an alimony obligation.  If their unemployment was voluntary, the courts will often impute income to that party and award alimony based on what they were making before that spouse quit their job (to “impute income”, means to assign a salary amount to an individual based on what they should be or could be earning).  The same standard of determining alimony is often used when a spouse is fired from their job.

In the case of Vazquez v. Vazquez, 922 So.2d 368 (Fla. 4th DCA 2006), the court elected to impute income to the Husband because he was fired from his job for sending threatening emails to the Wife.  After the Husband was fired he did not make a substantial effort to find employment with a comparable salary.  The court imputed income to the Husband at his former salary because his underemployment was due to his own misconduct and it continued to be voluntary.

In Bronson v. Bronson, 793 So.2d 1109 (Fla. 4th DCA 1109), the Husband elected not to show up to work and was subsequently terminated.  The court held that the Husband’s actions amounted to voluntary unemployment and thus the court imputed income to the Husband at the same level he was earning before he was terminated.  The court held; “Where a former husband has an ability to earn if he so desires, the trial judge should impute an income to him according to what he could earn by use of his best efforts to gain employment equal to his capabilities, and on that basis enter an award of alimony as if the husband were in fact earning the income so imputed. In such a situation, an award of alimony entirely exhausting the husband’s actual income may be a proper exercise of the trial courts discretion.”  Id. at 1111

Simply because your spouse has been fired or left a job voluntarily, that will not excuse them from having to pay alimony. Often times the spouse may find themselves without an income but they remain obligated to pay alimony as if they were still employed at the same income level. 

Factors in Determining Alimony, Part III: Duration of the Marriage

February 11, 2010

When the courts determine alimony they may use the duration of the marriage to determine the type of alimony to be applied.  The five forms of alimony commonly awarded by the Florida courts are; permanent periodic, lump sum, bridge the gap, rehabilitative and temporary. This entry will focus on permanent alimony, where the length of the marriage most often comes into play.

Permanent periodic alimony is typically a monthly payment that continues until the recipient dies, the payor dies, or the recipient remarries or cohabitates. Although the court has certain discretion, typically the length of the marriage is determined by the date the parties were married through the date the petition was filed.  Martinez v. Martinez, 761 So.2d 433 (Fla. 3d DCA 2000).  In a long term marriage the courts lean towards awarding permanent alimony, especially when one party has worked throughout the marriage and the other party has stayed home.  Determining what is a long term marriage can be problematic for judges.

There is no hard and fast rule when determining what constitutes a long term marriage.  Jurisdictions in Florida differ as to what they consider a short term marriage, a long term marriage and a gray area marriage.  Generally, a marriage lasting less than eight years is a considered to be short term, anything over sixteen years is considered long term, and everything in between is in the gray area. With a gray area marriage there is no presumption for or against permanent alimony. The courts will look at other factors such as; disparity of income, health of the parties, education, ability to work, as well as other factors laid out in Florida Statute 61.08.  For a short term marriage an award of permanent alimony is extremely rare.  In a long term marriage the courts will typically lean towards awarding permanent alimony unless each party is capable of self support.

Factors in Determining Alimony, Part II: Need and Ability to Pay

January 25, 2010

In part two of my entry related to factors in determining alimony, I will discuss perhaps the most important factor, need and ability to pay.  In contrast to child support, there are no specific set formulas or equations for the court to use when determining alimony.  Although several factors go into formulating an alimony award, perhaps none are as important as what the receiving party’s financial need is and what the paying party’s ability is to meet that need may be. 

One of the main purposes of alimony is to ensure that when a party leaves the marriage they do not go from living a life of wealth and prosperity to living in poverty.  That idea works for both the receiving spouse as well as the paying spouse.  The courts of course do not want the receiving spouse to go out into the world without any money in which to start their new life. At the same time, the court does not want the paying spouse to pay in excess of what they can afford. The paying spouse must be able to live their own lives as well as be able to meet their obligations to the children and the former spouse.  The court cannot issue an alimony award that is beyond a party’s ability to pay. 

With regards to “need”, the courts are concerned with what the receiving spouse needs to survive upon divorce.  As stated in my last post, the courts no longer consider lifestyle during the marriage to be a “super factor” in determining alimony.  The court is now much more concerned with making sure the receiving spouse is able to pay for food, shelter and if necessary, child care.  Alimony is not set based on the need of one spouse to go on vacation or to buy expensive toys.  Need is determined by looking at the financial affidavit of the receiving spouse and determining how much money they require on a month to month basis.  If the paying spouse is not able to meet that need, the parties must each re-evaluate their living expenses to make the most of the income that is available.

It is important that both the receiving spouse and the paying spouse accurately report their monthly need when completing their financial affidavits. The financial affidavit will enable the legal professionals to determine how much money is available for alimony and how much alimony is required.  If the parties are truthful and accurate in their financial affidavits, it will be that much easier for the professionals to determine a fair alimony payment.  Although the courts are not perfect when it comes to awarding alimony, their ultimate goal is always to fashion an alimony payment based on the actual need of a party and the other party’s ability to meet that need.

Factors in Determining Alimony, Part I: Lifestyle

January 03, 2010

There are many factors to be considered when the courts determine both the length and the amount of alimony. There is a lot of confusion over those factors perpetuated by individuals and the mass media. This entry is part one in a series of entries over the coming weeks that will be discussing the various factors the courts use when determining alimony.

The first factor that will be discussed is the standard of living established during the marriage. The standard of living is one of the more popular factors debated amongst individuals and the legal community alike. In Florida, the lifestyle enjoyed during the marriage is a factor considered when determining alimony, see Florida Statute 61.08.

The courts in Florida however, have recently determined that maintaining the standard of living a couple enjoyed during the marriage is nearly impossible for the vast majority of people going through a divorce. In 2007, the case of Jaffy v. Jaffy, 965 So.2d 825 (Fla. 4th DCA 2007) out of the Fourth District Court of Appeals, determined that the lifestyle established during the marriage is no longer a “super factor” when establishing an alimony award.

The court in Jaffy held that; because this couple had lived well beyond their means throughout the marriage, their lifestyle was largely irrelevant as it related to alimony. Id. at 827. The courts encouraged the parties to make a correction in their finances rather then electing to supplement a largely false lifestyle. Id.

The Third District Court of Appeals was in agreement with the Fourth District in holding that; the standard of living established during the marriage is no longer a “super factor” in determining alimony. In Lambert v. Lambert, 955 So.2d 25 (Fla, 3rd DCA 2007), the court held that when determining permanent alimony, the lifestyle during the marriage is not the most important factor. Rather, the court held that need and the ability to pay must be considered prior to making a determination of alimony based on the lifestyle the couple enjoyed during the marriage.  Id. at 38

Couples going through a divorce must recognize that their lives will soon change drastically. Although there are some wealthy individuals who can afford to maintain their the marital lifestyle after divorce, the vast majority of society cannot. The Florida courts are now more than ever, putting marital lifestyle behind other more important factors when they determine alimony.

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