Florida Senate - 2012 SB 748
By Senator Diaz de la Portilla
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.
38 Be It Enacted by the Legislature of the State of Florida:
40 Section 1. Section 61.08, Florida Statutes, is amended to
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
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
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
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
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
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
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
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
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
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.
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.—
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
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
371 Section 5. This act shall take effect July 1, 2012.