Florida Senate - 2012 COMMITTEE AMENDMENT
Bill No. SB 748
Barcode 276912
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
02/13/2012 .
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The Committee on Judiciary (Flores) recommended the following:
1 Senate Substitute for Amendment (600742) (with title
2 amendment)
3
4 Delete everything after the enacting clause
5 and insert:
6 Section 1. Section 61.08, Florida Statutes, is amended to
7 read:
8 61.08 Alimony.—
9 (1) In a proceeding for dissolution of marriage, the court
10 may grant alimony to either party, which alimony may be bridge
11 the-gap, rehabilitative, durational, or long-term permanent in
12 nature or any combination of these forms of alimony where
13 appropriate. In any award of alimony, the court may order
14 periodic payments or payments in lump sum or both. The court may
15 consider the adultery of either spouse and the circumstances
16 thereof in determining the amount of alimony, if any, to be
17 awarded to the extent that the adultery caused a significant
18 depletion in the marital assets or caused a significant
19 reduction in the income of a party. In all dissolution actions,
20 the court shall include findings of fact relative to the factors
21 enumerated in subsection (2) supporting an award or denial of
22 alimony.
23 (2) In determining whether to award alimony or maintenance,
24 the court shall first make, in writing, a specific factual
25 determination as to whether either party has an actual need for
26 alimony or maintenance and whether either party has the ability
27 to pay alimony or maintenance. If the court finds that a party
28 has a need for alimony or maintenance and that the other party
29 has the ability to pay alimony or maintenance, then in
30 determining the proper type and amount of alimony or maintenance
31 under subsections (5)-(8), the court shall consider and make
32 written findings regarding all relevant factors, including, but
33 not limited to:
34 (a) The standard of living established during the marriage.
35 (b) The duration of the marriage.
36 (c) The age and the physical and emotional condition of
37 each party.
38 (d) The financial resources of each party, including the
39 nonmarital and the marital assets and liabilities distributed to
40 each.
41 (e) The earning capacities, educational levels, vocational
42 skills, and employability of the parties and, when applicable,
43 the time necessary for either party to acquire sufficient
44 education or training to enable such party to find appropriate
45 employment.
46 (f) The contribution of each party to the marriage,
47 including, but not limited to, services rendered in homemaking,
48 child care, education, and career building of the other party.
49 (g) The responsibilities each party will have with regard
50 to any minor children the parties they have in common.
51 (h) The tax treatment and consequences to both parties of
52 any alimony award, which may include the designation of all or a
53 portion of the payment as nontaxable to the recipient and
54 nondeductible to the payor including the designation of all or a
55 portion of the payment as a nontaxable, nondeductible payment.
56 (i) All sources of income available to either party,
57 including income available to either party through investments
58 of any asset held by that party.
59 (j) The net income available to each party after the
60 application of the alimony award.
61 (k)(j) Any other factor necessary to do equity and justice
62 between the parties, if that factor is specifically identified
63 in the award along with findings of fact justifying the
64 application of the factor.
65 (3) To the extent necessary to protect an award of alimony,
66 the court may order any party who is ordered to pay alimony to
67 purchase or maintain a life insurance policy or a bond, or to
68 otherwise secure such alimony award with any other assets which
69 may be suitable for that purpose in an amount adequate to secure
70 the alimony award. Such security may be awarded only upon a
71 showing of special circumstances. If the court finds special
72 circumstances and awards such security, the court shall make
73 specific evidentiary findings regarding the availability, cost,
74 and financial impact on the obligated party. Any security may be
75 modifiable if the underlying alimony award is modified.
76 (4) For purposes of determining alimony, there is a
77 rebuttable presumption that a short-term marriage is a marriage
78 having a duration of less than 7 years, a moderate-term marriage
79 is a marriage having a duration of greater than 7 years or
80 greater but less than 17 years, and long-term marriage is a
81 marriage having a duration of 17 years or greater. The length of
82 a marriage is the period of time from the date of marriage until
83 the date of filing of an action for dissolution of marriage.
84 (5) Bridge-the-gap alimony may be awarded to assist a party
85 by providing support to allow the party to make a transition
86 from being married to being single. Bridge-the-gap alimony is
87 designed to assist a party with legitimate identifiable short
88 term needs, and the length of an award may not exceed 2 years.
89 An award of bridge-the-gap alimony terminates upon the death of
90 either party or upon the remarriage of the party receiving
91 alimony. An award of bridge-the-gap alimony shall not be
92 modifiable in amount or duration.
93 (6)(a) Rehabilitative alimony may be awarded to assist a
94 party in establishing the capacity for self-support through
95 either:
96 1. The redevelopment of previous skills or credentials; or
97 2. The acquisition of education, training, or work
98 experience necessary to develop appropriate employment skills or
99 credentials.
100 (b) In order to award rehabilitative alimony, there must be
101 a specific and defined rehabilitative plan which shall be
102 included as a part of any order awarding rehabilitative alimony.
103 (c) An award of rehabilitative alimony may be modified or
104 terminated in accordance with s. 61.14 based upon a substantial
105 change in circumstances, upon noncompliance with the
106 rehabilitative plan, or upon completion of the rehabilitative
107 plan.
108 (7) Durational alimony may be awarded when permanent
109 periodic alimony is inappropriate. The purpose of durational
110 alimony is to provide a party with economic assistance for a set
111 period of time following a marriage of short or moderate
112 duration or following a marriage of long duration if there is no
113 ongoing need for support on a long-term permanent basis as
114 provided in subsection (8). An award of durational alimony
115 terminates upon the death of either party or upon the remarriage
116 of the party receiving alimony. The amount of an award of
117 durational alimony may be modified or terminated based upon a
118 substantial change in circumstances in accordance with s. 61.14.
119 However, The length of an award of durational alimony may not be
120 modified except under exceptional circumstances and may not
121 exceed the length of the marriage.
122 (8) Long-term Permanent alimony may be awarded to provide
123 for the needs and necessities of life as they were established
124 during the marriage of the parties for a party who lacks the
125 financial ability to meet his or her needs and necessities of
126 life following a dissolution of marriage. Long-term Permanent
127 alimony may be awarded following a marriage of long duration if
128 such an award is appropriate upon consideration of the factors
129 set forth in subsection (2), following a marriage of moderate
130 duration if such an award is appropriate based upon clear and
131 convincing evidence after consideration of the factors set forth
132 in subsection (2), or following a marriage of short duration if
133 there are written findings of exceptional circumstances. In
134 awarding long-term permanent alimony, the court shall include
135 findings a finding that no other form of alimony will provide
136 for the needs and necessities of life of the recipient as
137 established during the marriage of the parties and that no other
138 form is fair and reasonable under the circumstances of the
139 parties. An award of long-term permanent alimony remains payable
140 until terminates upon the death of either party or upon the
141 remarriage of the party receiving alimony. An award may be
142 modified or terminated based upon a substantial change in
143 circumstances or upon the existence of a supportive relationship
144 in accordance with s. 61.14.
145 (9) The award of alimony may not leave the payor with
146 significantly less net income than the net income of the
147 recipient unless there are written findings of exceptional
148 circumstances.
149 (10)(a) With respect to any order requiring the payment of
150 alimony entered on or after January 1, 1985, unless the
151 provisions of paragraph (c) or paragraph (d) applies apply, the
152 court shall direct in the order that the payments of alimony be
153 made through the appropriate depository as provided in s.
154 61.181.
155 (b) With respect to any order requiring the payment of
156 alimony entered before January 1, 1985, upon the subsequent
157 appearance, on or after that date, of one or both parties before
158 the court having jurisdiction for the purpose of modifying or
159 enforcing the order or in any other proceeding related to the
160 order, or upon the application of either party, unless the
161 provisions of paragraph (c) or paragraph (d) applies apply, the
162 court shall modify the terms of the order as necessary to direct
163 that payments of alimony be made through the appropriate
164 depository as provided in s. 61.181.
165 (c) If there is no minor child, alimony payments need not
166 be directed through the depository.
167 (d)1. If there is a minor child of the parties and both
168 parties so request, the court may order that alimony payments
169 need not be directed through the depository. In this case, the
170 order of support shall provide, or be deemed to provide, that
171 either party may subsequently apply to the depository to require
172 that payments be made through the depository. The court shall
173 provide a copy of the order to the depository.
174 2. If the provisions of subparagraph 1. applies apply,
175 either party may subsequently file with the depository an
176 affidavit alleging default or arrearages in payment and stating
177 that the party wishes to initiate participation in the
178 depository program. The party shall provide copies of the
179 affidavit to the court and the other party or parties. Fifteen
180 days after receipt of the affidavit, the depository shall notify
181 all parties that future payments shall be directed to the
182 depository.
183 3. In IV-D cases, the IV-D agency shall have the same
184 rights as the obligee in requesting that payments be made
185 through the depository.
186 Section 2. Paragraph (b) of subsection (1) of section
187 61.14, Florida Statutes, is amended, and subsection (12) is
188 added to that section, to read:
189 61.14 Enforcement and modification of support, maintenance,
190 or alimony agreements or orders.—
191 (1)
192 (b)1. The court may reduce or terminate an award of alimony
193 upon specific written findings by the court that since the
194 granting of a divorce and the award of alimony a supportive
195 relationship has existed between the obligee and a person with
196 whom the obligee resides. On the issue of whether alimony should
197 be reduced or terminated under this paragraph, the burden is on
198 the obligor to prove by a preponderance of the evidence that a
199 supportive relationship exists.
200 2. In determining whether an existing award of alimony
201 should be reduced or terminated because of an alleged supportive
202 relationship between an obligee and a person who is not related
203 by consanguinity or affinity and with whom the obligee resides,
204 the court shall elicit the nature and extent of the relationship
205 in question. The court shall give consideration, without
206 limitation, to circumstances, including, but not limited to, the
207 following, in determining the relationship of an obligee to
208 another person:
209 a. The extent to which the obligee and the other person
210 have held themselves out as a married couple by engaging in
211 conduct such as using the same last name, using a common mailing
212 address, referring to each other in terms such as “my husband”
213 or “my wife,” or otherwise conducting themselves in a manner
214 that evidences a permanent supportive relationship.
215 b. The period of time that the obligee has resided with the
216 other person in a permanent place of abode.
217 c. The extent to which the obligee and the other person
218 have pooled their assets or income or otherwise exhibited
219 financial interdependence.
220 d. The extent to which the obligee or the other person has
221 supported the other, in whole or in part.
222 e. The extent to which the obligee or the other person has
223 performed valuable services for the other.
224 f. The extent to which the obligee or the other person has
225 performed valuable services for the other’s company or employer.
226 g. Whether the obligee and the other person have worked
227 together to create or enhance anything of value.
228 h. Whether the obligee and the other person have jointly
229 contributed to the purchase of any real or personal property.
230 i. Evidence in support of a claim that the obligee and the
231 other person have an express agreement regarding property
232 sharing or support.
233 j. Evidence in support of a claim that the obligee and the
234 other person have an implied agreement regarding property
235 sharing or support.
236 k. Whether the obligee and the other person have provided
237 support to the children of one another, regardless of any legal
238 duty to do so.
239 3. This paragraph does not abrogate the requirement that
240 every marriage in this state be solemnized under a license, does
241 not recognize a common law marriage as valid, and does not
242 recognize a de facto marriage. This paragraph recognizes only
243 that relationships do exist that provide economic support
244 equivalent to a marriage and that alimony terminable on
245 remarriage may be reduced or terminated upon the establishment
246 of equivalent equitable circumstances as described in this
247 paragraph. The existence of a conjugal relationship, though it
248 may be relevant to the nature and extent of the relationship, is
249 not necessary for the application of the provisions of this
250 paragraph.
251 4. A court terminating an alimony award based on the
252 existence of a supportive relationship may not reserve
253 jurisdiction to later reinstate alimony.
254 5. A modification or termination of an alimony award is
255 retroactive to the date of filing.
256 (12) The fact that an obligor has reached the normal
257 retirement age for his or her profession, has retired, and has
258 no intent to return to work shall be considered a substantial
259 change in circumstance as a matter of law. In determining
260 whether the obligor’s retirement is reasonable, the court shall
261 consider the following factors of the payor:
262 (a) Age.
263 (b) Health.
264 (c) Motivation for retirement.
265 (d) Type of work.
266 (e) Normal retirement age for that type of work.
267 Section 3. Section 61.19, Florida Statutes, is amended to
268 read:
269 61.19 Entry of judgment of dissolution of marriage;, delay
270 period; bifurcation.—
271 (1) A No final judgment of dissolution of marriage may not
272 be entered until at least 20 days have elapsed following from
273 the date of filing the original petition for dissolution of
274 marriage,; but the court, on a showing that injustice would
275 result from this delay, may enter a final judgment of
276 dissolution of marriage at an earlier date.
277 (2) During the first 180 days following the date of service
278 of the original petition for dissolution of marriage, the court
279 may not grant a final dissolution of marriage with a reservation
280 of jurisdiction to subsequently determine all other substantive
281 issues except in exceptional circumstances when it is clearly
282 necessary for the best interests of the parties or their
283 children. The desire of one of the parties to remarry does not
284 justify the use of this process. If more than 180 days have
285 elapsed following the date of service of the original petition
286 for dissolution of marriage, the court may grant a final
287 dissolution of marriage with a reservation of jurisdiction to
288 subsequently determine all other substantive issues only if the
289 court enters such other temporary orders as are necessary to
290 protect the interests of the parties and their children, which
291 shall remain effective until such time as all other issues can
292 be adjudicated by the court. The temporary orders necessary to
293 protect the interests of the children and the parties, which may
294 be entered before the granting of a dissolution of marriage
295 without an adjudication of all substantive issues, may include,
296 but need not be limited to, temporary orders that:
297 (a) Restrict the sale or disposition of property.
298 (b) Protect and preserve the marital assets.
299 (c) Establish support.
300 (d) Provide for maintenance of health insurance.
301 (e) Provide for maintenance of life insurance.
302
303 The court is not required to enter temporary orders to protect
304 the parties and their children if the court enters a final
305 judgment of dissolution of marriage which adjudicates
306 substantially all of the substantive issues between the parties
307 but reserves jurisdiction to address ancillary issues, such as
308 the entry of a qualified domestic relations order or the
309 adjudication of attorney fees and costs.
310 Section 4. This act shall take effect July 1, 2012.
311
312 ================= T I T L E A M E N D M E N T ================
313 And the title is amended as follows:
314 Delete everything before the enacting clause
315 and insert:
316 A bill to be entitled
317 An act relating to dissolution of marriage; amending
318 s. 61.08, F.S.; revising the factors to be considered
319 for alimony awards, including adultery; requiring a
320 court to make certain written findings concerning
321 alimony; providing that if the court orders a party to
322 provide security to protect an award of alimony, the
323 court may so order only upon a showing of special
324 circumstances; requiring that the court make specific
325 evidentiary findings regarding the availability, cost,
326 and financial impact on the obligated party to support
327 the award of security; revising provisions for an
328 award of durational alimony; redesignating permanent
329 alimony as long-term alimony and revising provisions
330 relating to its award; amending s. 61.14, F.S.;
331 prohibiting a court from reserving jurisdiction to
332 reinstate an alimony award if a supportive
333 relationship ends; providing that a modification or
334 termination of an alimony award is retroactive to the
335 date of filing; requiring the court to consider
336 certain specified factors in determining if the
337 obligor’s retirement is reasonable; amending s. 61.19,
338 F.S.; prohibiting the court from granting a final
339 dissolution of marriage with a reservation of
340 jurisdiction during the first 180 days after the date
341 of service of the original petition for dissolution of
342 marriage to subsequently determine all other
343 substantive issues except in exceptional
344 circumstances; authorizing the court to grant a final
345 dissolution of marriage with a reservation of
346 jurisdiction to subsequently determine all other
347 substantive issues only if the court enters such other
348 temporary orders as are necessary to protect the
349 interests of the parties and their children; providing
350 circumstances in which the court is not required to
351 enter a temporary order; providing an effective date.