Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. CS/CS/HB 565, 2nd Eng.
       
       
       
       
       
       
                                Barcode 663624                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                  Floor: WD            .                                
             03/09/2012 11:31 AM       .                                
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       Senator Diaz de la Portilla moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 145 - 273
    4  and insert:
    5         Section 3. Section 61.08, Florida Statutes, is amended to
    6  read:
    7         61.08 Alimony.—
    8         (1) In a proceeding for dissolution of marriage, the court
    9  may grant alimony to either party, which alimony may be bridge
   10  the-gap, rehabilitative, durational, or long-term permanent in
   11  nature or any combination of these forms of alimony when
   12  appropriate. The court shall make written findings regarding the
   13  basis for awarding combinations of alimony, including the type
   14  of alimony and length of time for which it is awarded. The
   15  purposes of combining forms of alimony are to provide greater
   16  economic assistance to allow the recipient to achieve
   17  rehabilitation, where practicable, or for the recipient to
   18  achieve the ability to contribute to the needs and necessities
   19  of life, taking into account such needs and necessities of life
   20  as they were established during the marriage. In any award of
   21  alimony, the court may order periodic payments or payments in
   22  lump sum or both. The court may consider the adultery of either
   23  party spouse and the circumstances thereof in determining the
   24  amount of alimony, if any, to be awarded. In all dissolution
   25  actions, the court shall include findings of fact relative to
   26  the factors enumerated in subsection (2) supporting an award or
   27  denial of alimony.
   28         (2) In determining whether to award alimony or maintenance,
   29  the court shall first make, in writing, a specific factual
   30  determination as to whether either party has an actual need for
   31  alimony or maintenance and whether either party has the ability
   32  to pay alimony or maintenance. If the court finds that a party
   33  has a need for alimony or maintenance and that the other party
   34  has the ability to pay alimony or maintenance, then in
   35  determining the proper type and amount of alimony or maintenance
   36  under subsections (5)-(8), the court shall consider and make
   37  written findings regarding all relevant factors, including, but
   38  not limited to:
   39         (a) The standard of living established during the marriage.
   40         (b) The duration of the marriage.
   41         (c) The age and the physical and emotional condition of
   42  each party.
   43         (d) The financial resources of each party, including the
   44  nonmarital and the marital assets and liabilities distributed to
   45  each.
   46         (e) The earning capacities, educational levels, vocational
   47  skills, and employability of the parties and, when applicable,
   48  the time necessary for either party to acquire sufficient
   49  education or training to enable such party to find appropriate
   50  employment.
   51         (f) The contribution of each party to the marriage,
   52  including, but not limited to, services rendered in homemaking,
   53  child care, education, and career building of the other party.
   54         (g) The responsibilities each party will have with regard
   55  to any minor children the parties they have in common.
   56         (h) The tax treatment and consequences to both parties of
   57  an any alimony award, which may include including the
   58  designation of all or a portion of the payment as a nontaxable,
   59  nondeductible payment.
   60         (i) All sources of income available to either party,
   61  including income available to either party through investments
   62  of any asset held by that party.
   63         (j) The net income available to each party after the
   64  application of the alimony award.
   65         (k)(j) Any other factor necessary to do equity and justice
   66  between the parties, if that factor is specifically identified
   67  in the award along with findings of fact justifying the
   68  application of the factor.
   69         (3) To the extent necessary to protect an award of alimony,
   70  the court may order any party who is ordered to pay alimony to
   71  purchase or maintain a life insurance policy or a bond, or to
   72  otherwise secure such alimony award with any other assets which
   73  may be suitable for that purpose in an amount adequate to secure
   74  the alimony award. Any such security may be awarded only upon a
   75  showing of special circumstances. If the court finds special
   76  circumstances and awards such security, the court must make
   77  specific evidentiary findings regarding the availability, cost,
   78  and financial impact on the obligated party. Any security may be
   79  modifiable in the event the underlying alimony award is modified
   80  and may be reduced in an amount commensurate with a reduction in
   81  the alimony award.
   82         (4) For purposes of determining alimony, there is a
   83  rebuttable presumption that a short-term marriage is a marriage
   84  having a duration equal to or of less than 7 years, a moderate
   85  term marriage is a marriage having a duration of greater than 7
   86  years but less than 18 17 years, and a long-term marriage is a
   87  marriage having a duration of 18 17 years or greater. The length
   88  of a marriage is the period of time from the date of marriage
   89  until the date of filing of an action for dissolution of
   90  marriage. If the parties have been married to each other more
   91  than once, the court may, for purposes of determining alimony,
   92  add the years of the marriages together to determine the
   93  duration of the marriage.
   94         (5) Bridge-the-gap alimony may be awarded to assist a party
   95  by providing support to allow the party to make a transition
   96  from being married to being single. Bridge-the-gap alimony is
   97  designed to assist a party with legitimate identifiable short
   98  term needs, and the length of an award may not exceed 2 years.
   99  An award of bridge-the-gap alimony terminates upon the death of
  100  either party or upon the remarriage of the party receiving
  101  alimony. An award of bridge-the-gap alimony shall not be
  102  modifiable in amount or duration.
  103         (6)(a) Rehabilitative alimony may be awarded to assist a
  104  party in establishing the capacity for self-support through
  105  either:
  106         1. The redevelopment of previous skills or credentials; or
  107         2. The acquisition of education, training, or work
  108  experience necessary to develop appropriate employment skills or
  109  credentials.
  110         (b) In order to award rehabilitative alimony, there must be
  111  a specific and defined rehabilitative plan which shall be
  112  included as a part of any order awarding rehabilitative alimony.
  113         (c) An award of rehabilitative alimony may be modified or
  114  terminated in accordance with s. 61.14 based upon a substantial
  115  change in circumstances, upon noncompliance with the
  116  rehabilitative plan, or upon completion of the rehabilitative
  117  plan.
  118         (7) Durational alimony may be awarded when long-term
  119  permanent periodic alimony is inappropriate. The purpose of
  120  durational alimony is to provide a party with economic
  121  assistance for a set period of time following a marriage of
  122  short or moderate duration or following a marriage of long
  123  duration if there is no ongoing need for support on a long-term
  124  permanent basis. An award of durational alimony terminates upon
  125  the death of either party or upon the remarriage of the party
  126  receiving alimony. The amount of an award of durational alimony
  127  may be modified or terminated based upon a substantial change in
  128  circumstances in accordance with s. 61.14. However, the length
  129  of an award of durational alimony may not be modified except
  130  under exceptional circumstances and may not exceed the length of
  131  the marriage.
  132         (8) Long-term Permanent alimony may be awarded to provide
  133  for the needs and necessities of life as they were established
  134  during the marriage of the parties for a party who lacks the
  135  financial ability to meet his or her needs and necessities of
  136  life following a dissolution of marriage. Long-term Permanent
  137  alimony may be awarded following a long-term marriage of long
  138  duration if such an award is appropriate upon consideration of
  139  the factors set forth in subsection (2), following a moderate
  140  term marriage of moderate duration if such an award is
  141  appropriate based upon clear and convincing evidence after
  142  consideration of the factors set forth in subsection (2), or
  143  following a short-term marriage of short duration if there are
  144  written findings of exceptional circumstances. In awarding long
  145  term permanent alimony, the court shall include findings a
  146  finding that no other form of alimony will provide for the needs
  147  and necessities of life as established during the marriage of
  148  the parties and that no other form of alimony is fair and
  149  reasonable under the circumstances of the parties. An award of
  150  long-term permanent alimony remains payable until terminates
  151  upon the death of either party, termination by court order, or
  152  upon the remarriage of the party receiving alimony. An award may
  153  be modified or terminated based upon a substantial change in
  154  circumstances or upon the existence of a supportive relationship
  155  in accordance with s. 61.14.
  156         (9) An The award of alimony may not leave the payor with
  157  significantly less net income than the net income of the
  158  recipient unless there are written findings of exceptional
  159  circumstances. The court shall make written findings regarding
  160  the income of each party after the application of the alimony
  161  award.
  162         (10)(a) With respect to any order requiring the payment of
  163  alimony entered on or after January 1, 1985, unless the
  164  provisions of paragraph (c) or paragraph (d) applies apply, the
  165  court shall direct in the order that the payments of alimony be
  166  made through the appropriate depository as provided in s.
  167  61.181.
  168         (b) With respect to any order requiring the payment of
  169  alimony entered before January 1, 1985, upon the subsequent
  170  appearance, on or after that date, of one or both parties before
  171  the court having jurisdiction for the purpose of modifying or
  172  enforcing the order or in any other proceeding related to the
  173  order, or upon the application of either party, unless the
  174  provisions of paragraph (c) or paragraph (d) applies apply, the
  175  court shall modify the terms of the order as necessary to direct
  176  that payments of alimony be made through the appropriate
  177  depository as provided in s. 61.181.
  178         (c) If there is no minor child, alimony payments need not
  179  be directed through the depository.
  180         (d)1. If there is a minor child of the parties and both
  181  parties so request, the court may order that alimony payments
  182  need not be directed through the depository. In this case, the
  183  order of support shall provide, or be deemed to provide, that
  184  either party may subsequently apply to the depository to require
  185  that payments be made through the depository. The court shall
  186  provide a copy of the order to the depository.
  187         2. If the provisions of subparagraph 1. applies apply,
  188  either party may subsequently file with the depository an
  189  affidavit alleging default or arrearages in payment and stating
  190  that the party wishes to initiate participation in the
  191  depository program. The party shall provide copies of the
  192  affidavit to the court and the other party or parties. Fifteen
  193  days after receipt of the affidavit, the depository shall notify
  194  all parties that future payments shall be directed to the
  195  depository.
  196         3. In IV-D cases, the IV-D agency shall have the same
  197  rights as the obligee in requesting that payments be made
  198  through the depository.
  199         Section 4. Subsection (1) of section 61.14, Florida
  200  Statutes, is amended, and subsection (12) is added to that
  201  section, to read:
  202         61.14 Enforcement and modification of support, maintenance,
  203  or alimony agreements or orders.—
  204         (1)(a) When the parties enter into an agreement for
  205  payments for, or instead of, support, maintenance, or alimony,
  206  whether in connection with a proceeding for dissolution or
  207  separate maintenance or with any voluntary property settlement,
  208  or when a party is required by court order to make any payments,
  209  and the circumstances or the financial ability of either party
  210  changes or the child who is a beneficiary of an agreement or
  211  court order as described herein reaches majority after the
  212  execution of the agreement or the rendition of the order, either
  213  party may apply to the circuit court of the circuit in which the
  214  parties, or either of them, resided at the date of the execution
  215  of the agreement or reside at the date of the application, or in
  216  which the agreement was executed or in which the order was
  217  rendered, for an order decreasing or increasing the amount of
  218  support, maintenance, or alimony, and the court has jurisdiction
  219  to make orders as equity requires, with due regard to the
  220  changed circumstances or the financial ability of the parties or
  221  the child, decreasing, increasing, or confirming the amount of
  222  separate support, maintenance, or alimony provided for in the
  223  agreement or order. For purposes of considering a petition for
  224  modification of an alimony award, absent exceptional
  225  circumstances, an increase or decrease in either party’s income
  226  may not be considered permanent in nature unless the increase or
  227  decrease has been maintained without interruption for at least 6
  228  months. A finding that medical insurance is reasonably available
  229  or the child support guidelines schedule in s. 61.30 may
  230  constitute changed circumstances. Except as otherwise provided
  231  in s. 61.30(11)(c), the court may modify an order of support,
  232  maintenance, or alimony by increasing or decreasing the support,
  233  maintenance, or alimony retroactively to the date of the filing
  234  of the action or supplemental action for modification as equity
  235  requires, giving due regard to the changed circumstances or the
  236  financial ability of the parties or the child.
  237         (b)1. The court may reduce or terminate an award of alimony
  238  upon specific written findings by the court that since the
  239  granting of a divorce and the award of alimony a supportive
  240  relationship has existed between the obligee and a person with
  241  whom the obligee resides. On the issue of whether alimony should
  242  be reduced or terminated under this paragraph, the burden is on
  243  the obligor to prove by a preponderance of the evidence that a
  244  supportive relationship exists.
  245         2. In determining whether an existing award of alimony
  246  should be reduced or terminated because of an alleged supportive
  247  relationship between an obligee and a person who is not related
  248  by consanguinity or affinity and with whom the obligee resides,
  249  the court shall elicit the nature and extent of the relationship
  250  in question. The court shall give consideration, without
  251  limitation, to circumstances, including, but not limited to, the
  252  following, in determining the relationship of an obligee to
  253  another person:
  254         a. The extent to which the obligee and the other person
  255  have held themselves out as a married couple by engaging in
  256  conduct such as using the same last name, using a common mailing
  257  address, referring to each other in terms such as “my husband”
  258  or “my wife,” or otherwise conducting themselves in a manner
  259  that evidences a permanent supportive relationship.
  260         b. The period of time that the obligee has resided with the
  261  other person in a permanent place of abode.
  262         c. The extent to which the obligee and the other person
  263  have pooled their assets or income or otherwise exhibited
  264  financial interdependence.
  265         d. The extent to which the obligee or the other person has
  266  supported the other, in whole or in part.
  267         e. The extent to which the obligee or the other person has
  268  performed valuable services for the other.
  269         f. The extent to which the obligee or the other person has
  270  performed valuable services for the other’s company or employer.
  271         g. Whether the obligee and the other person have worked
  272  together to create or enhance anything of value.
  273         h. Whether the obligee and the other person have jointly
  274  contributed to the purchase of any real or personal property.
  275         i. Evidence in support of a claim that the obligee and the
  276  other person have an express agreement regarding property
  277  sharing or support.
  278         j. Evidence in support of a claim that the obligee and the
  279  other person have an implied agreement regarding property
  280  sharing or support.
  281         k. Whether the obligee and the other person have provided
  282  support to the children of one another, regardless of any legal
  283  duty to do so.
  284         3. This paragraph does not abrogate the requirement that
  285  every marriage in this state be solemnized under a license, does
  286  not recognize a common law marriage as valid, and does not
  287  recognize a de facto marriage. This paragraph recognizes only
  288  that relationships do exist that provide economic support
  289  equivalent to a marriage and that alimony terminable on
  290  remarriage may be reduced or terminated upon the establishment
  291  of equivalent equitable circumstances as described in this
  292  paragraph. The existence of a conjugal relationship, though it
  293  may be relevant to the nature and extent of the relationship, is
  294  not necessary for the application of the provisions of this
  295  paragraph.
  296         4. In an action for modification or termination of alimony,
  297  the court may retroactively modify or terminate the alimony
  298  award to the date of filing of the petition. In an action under
  299  this section, if it is determined that a party unnecessarily or
  300  unreasonably litigated the underlying petition for modification
  301  or termination, the court may award the other party his or her
  302  reasonable attorney fees and costs.
  303         5. A court terminating an alimony award based on the
  304  existence of a supportive relationship may not reserve
  305  jurisdiction to later reinstate alimony.
  306         (c) For each support order reviewed by the department as
  307  required by s. 409.2564(11), if the amount of the child support
  308  award under the order differs by at least 10 percent but not
  309  less than $25 from the amount that would be awarded under s.
  310  61.30, the department shall seek to have the order modified and
  311  any modification shall be made without a requirement for proof
  312  or showing of a change in circumstances.
  313         (d) The department shall have authority to adopt rules to
  314  implement this section.
  315         (12) The fact that an obligor has reached a reasonable
  316  retirement age for his or her profession, has retired, and has
  317  no intent to return to work shall be considered a substantial
  318  change in circumstances as a matter of law. In determining
  319  whether the obligor’s retirement age is reasonable, the court
  320  shall consider the obligor’s:
  321         (a) Age.
  322         (b) Health.
  323         (c) Motivation for retirement.
  324         (d) Type of work.
  325         (e) Normal retirement age for that type of work.
  326         Section 5. Section 61.19, Florida Statutes, is amended to
  327  read:
  328         61.19 Entry of judgment of dissolution of marriage, delay
  329  period; separate adjudication of issues.—
  330         (1) A No final judgment of dissolution of marriage may not
  331  be entered until at least 20 days have elapsed from the date of
  332  filing the original petition for dissolution of marriage; but
  333  the court, on a showing that injustice would result from this
  334  delay, may enter a final judgment of dissolution of marriage at
  335  an earlier date.
  336         (2)(a) During the first 180 days after the date of service
  337  of the original petition for dissolution of marriage, the court
  338  may not grant a final dissolution of marriage with a reservation
  339  of jurisdiction to subsequently determine all other substantive
  340  issues unless the court makes written findings that there are
  341  exceptional circumstances that make the use of this process
  342  clearly necessary in order to protect the parties or their
  343  children and that granting a final dissolution will not cause
  344  irreparable harm to either party or the children. Before
  345  granting a final dissolution of marriage with a reservation of
  346  jurisdiction to subsequently determine all other substantive
  347  issues, the court shall enter appropriate temporary orders
  348  necessary to protect the parties and their children, which
  349  orders shall remain effective until all other issues can be
  350  adjudicated by the court. The desire of one of the parties to
  351  remarry does not justify the use of this process.
  352         (b) If more than 180 days have elapsed after the date of
  353  service of the original petition for dissolution of marriage,
  354  the court may grant a final dissolution of marriage with a
  355  reservation of jurisdiction to subsequently determine all other
  356  substantive issues only if the court enters appropriate
  357  temporary orders necessary to protect the parties and their
  358  children, which orders shall remain in effect until such time as
  359  all other issues can be adjudicated by the court and the court
  360  makes a written finding that no irreparable harm will result
  361  from granting a final dissolution.
  362         (c) If more than 365 days have elapsed after the date of
  363  service of the original petition for dissolution of marriage,
  364  absent a showing by either party that irreparable harm will
  365  result from granting a final dissolution, the court shall, upon
  366  request of either party, immediately grant a final dissolution
  367  of marriage with a reservation of jurisdiction to subsequently
  368  determine all other substantive issues. Before granting a final
  369  dissolution of marriage with a reservation of jurisdiction to
  370  subsequently determine all other substantive issues, the court
  371  shall enter appropriate temporary orders necessary to protect
  372  the parties and their children, which orders shall remain in
  373  effect until all other issues can be adjudicated by the court.
  374         (d) The temporary orders necessary to protect the parties
  375  and their children entered before granting a dissolution of
  376  marriage without an adjudication of all substantive issues may
  377  include, but are not limited to, temporary orders that:
  378         1. Restrict the sale or disposition of property.
  379         2. Protect and preserve the marital assets.
  380         3. Establish temporary support.
  381         4. Provide for maintenance of health insurance.
  382         5. Provide for maintenance of life insurance.
  383  (e) The court is not required to enter temporary orders to
  384  protect the parties and their children if the court enters a
  385  final judgment of dissolution of marriage which adjudicates
  386  substantially all of the substantive issues between the parties
  387  but reserves jurisdiction to address ancillary issues such as
  388  the entry of a qualified domestic relations order or the
  389  adjudication of attorney fees and costs.
  390  
  391  ================= T I T L E  A M E N D M E N T ================
  392         And the title is amended as follows:
  393         Delete lines 17 - 31
  394  and insert:
  395         application of the formulas is not equitable; amending
  396         s. 61.08, F.S.; requiring the court to make written
  397         findings regarding the basis for awarding combinations
  398         of alimony, including the type of alimony and length
  399         of time for which it is awarded; requiring the court
  400         to make written findings regarding specified factors
  401         the court must consider when awarding alimony;
  402         providing that the court may order security to protect
  403         an award of alimony; requiring that any such security
  404         may be awarded only upon a showing of special
  405         circumstances; providing that if the court finds
  406         special circumstances and awards such security, the
  407         court must make specific evidentiary findings
  408         regarding the availability, cost, and financial impact
  409         on the obligated party; requiring a court, if awarding
  410         long-term alimony, to make findings that no other form
  411         of alimony will provide for the needs and necessities
  412         of life as established during the marriage of the
  413         parties and that no other form of alimony is fair and
  414         reasonable under the circumstances of the parties;
  415         amending s. 61.14, F.S.; revising provisions