Florida Senate - 2012                              CS for SB 748
       
       
       
       By the Committee on Judiciary; and Senator Diaz de la Portilla
       
       
       
       
       590-03215-12                                           2012748c1
    1                        A bill to be entitled                      
    2         An act relating to dissolution of marriage; amending
    3         s. 61.08, F.S.; revising the factors to be considered
    4         for alimony awards, including adultery; requiring a
    5         court to make certain written findings concerning
    6         alimony; providing that if the court orders a party to
    7         provide security to protect an award of alimony, the
    8         court may so order only upon a showing of special
    9         circumstances; requiring that the court make specific
   10         evidentiary findings regarding the availability, cost,
   11         and financial impact on the obligated party to support
   12         the award of security; revising provisions for an
   13         award of durational alimony; redesignating permanent
   14         alimony as long-term alimony and revising provisions
   15         relating to its award; amending s. 61.14, F.S.;
   16         prohibiting a court from reserving jurisdiction to
   17         reinstate an alimony award if a supportive
   18         relationship ends; providing that a modification or
   19         termination of an alimony award is retroactive to the
   20         date of filing; requiring the court to consider
   21         certain specified factors in determining if the
   22         obligor’s retirement is reasonable; amending s. 61.19,
   23         F.S.; prohibiting the court from granting a final
   24         dissolution of marriage with a reservation of
   25         jurisdiction during the first 180 days after the date
   26         of service of the original petition for dissolution of
   27         marriage to subsequently determine all other
   28         substantive issues except in exceptional
   29         circumstances; authorizing the court to grant a final
   30         dissolution of marriage with a reservation of
   31         jurisdiction to subsequently determine all other
   32         substantive issues only if the court enters such other
   33         temporary orders as are necessary to protect the
   34         interests of the parties and their children; providing
   35         circumstances in which the court is not required to
   36         enter a temporary order; 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, the court
   44  may grant alimony to either party, which alimony may be bridge
   45  the-gap, rehabilitative, durational, or long-term permanent in
   46  nature or any combination of these forms of alimony where
   47  appropriate. In any award of alimony, the court may order
   48  periodic payments or payments in lump sum or both. The court may
   49  consider the adultery of either spouse and the circumstances
   50  thereof in determining the amount of alimony, if any, to be
   51  awarded to the extent that the adultery caused a significant
   52  depletion in the marital assets or caused a significant
   53  reduction in the income of a party. In all dissolution actions,
   54  the 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 and make
   66  written findings regarding all relevant factors, including, but
   67  not limited to:
   68         (a) The standard of living established during the marriage.
   69         (b) The duration of the marriage.
   70         (c) The age and the physical and emotional condition of
   71  each party.
   72         (d) The financial resources of each party, including the
   73  nonmarital and the marital assets and liabilities distributed to
   74  each.
   75         (e) The earning capacities, educational levels, vocational
   76  skills, and employability of the parties and, when applicable,
   77  the time necessary for either party to acquire sufficient
   78  education or training to enable such party to find appropriate
   79  employment.
   80         (f) The contribution of each party to the marriage,
   81  including, but not limited to, services rendered in homemaking,
   82  child care, education, and career building of the other party.
   83         (g) The responsibilities each party will have with regard
   84  to any minor children the parties they have in common.
   85         (h) The tax treatment and consequences to both parties of
   86  any alimony award, which may include the designation of all or a
   87  portion of the payment as nontaxable to the recipient and
   88  nondeductible to the payor including the designation of all or a
   89  portion of the payment as a nontaxable, nondeductible payment.
   90         (i) All sources of income available to either party,
   91  including income available to either party through investments
   92  of any asset held by that party.
   93         (j) The net income available to each party after the
   94  application of the alimony award.
   95         (k)(j) Any other factor necessary to do equity and justice
   96  between the parties, if that factor is specifically identified
   97  in the award along with findings of fact justifying the
   98  application of the factor.
   99         (3) To the extent necessary to protect an award of alimony,
  100  the court may order any party who is ordered to pay alimony to
  101  purchase or maintain a life insurance policy or a bond, or to
  102  otherwise secure such alimony award with any other assets which
  103  may be suitable for that purpose in an amount adequate to secure
  104  the alimony award. Such security may be awarded only upon a
  105  showing of special circumstances. If the court finds special
  106  circumstances and awards such security, the court shall make
  107  specific evidentiary findings regarding the availability, cost,
  108  and financial impact on the obligated party. Any security may be
  109  modifiable if the underlying alimony award is modified.
  110         (4) For purposes of determining alimony, there is a
  111  rebuttable presumption that a short-term marriage is a marriage
  112  having a duration of less than 7 years, a moderate-term marriage
  113  is a marriage having a duration of greater than 7 years or
  114  greater but less than 17 years, and long-term marriage is a
  115  marriage having a duration of 17 years or greater. The length of
  116  a marriage is the period of time from the date of marriage until
  117  the date of filing of an action for dissolution of marriage.
  118         (5) Bridge-the-gap alimony may be awarded to assist a party
  119  by providing support to allow the party to make a transition
  120  from being married to being single. Bridge-the-gap alimony is
  121  designed to assist a party with legitimate identifiable short
  122  term needs, and the length of an award may not exceed 2 years.
  123  An award of bridge-the-gap alimony terminates upon the death of
  124  either party or upon the remarriage of the party receiving
  125  alimony. An award of bridge-the-gap alimony shall not be
  126  modifiable in amount or duration.
  127         (6)(a) Rehabilitative alimony may be awarded to assist a
  128  party in establishing the capacity for self-support through
  129  either:
  130         1. The redevelopment of previous skills or credentials; or
  131         2. The acquisition of education, training, or work
  132  experience necessary to develop appropriate employment skills or
  133  credentials.
  134         (b) In order to award rehabilitative alimony, there must be
  135  a specific and defined rehabilitative plan which shall be
  136  included as a part of any order awarding rehabilitative alimony.
  137         (c) An award of rehabilitative alimony may be modified or
  138  terminated in accordance with s. 61.14 based upon a substantial
  139  change in circumstances, upon noncompliance with the
  140  rehabilitative plan, or upon completion of the rehabilitative
  141  plan.
  142         (7) Durational alimony may be awarded when permanent
  143  periodic alimony is inappropriate. The purpose of durational
  144  alimony is to provide a party with economic assistance for a set
  145  period of time following a marriage of short or moderate
  146  duration or following a marriage of long duration if there is no
  147  ongoing need for support on a long-term permanent basis as
  148  provided in subsection (8). An award of durational alimony
  149  terminates upon the death of either party or upon the remarriage
  150  of the party receiving alimony. The amount of an award of
  151  durational alimony may be modified or terminated based upon a
  152  substantial change in circumstances in accordance with s. 61.14.
  153  However, The length of an award of durational alimony may not be
  154  modified except under exceptional circumstances and may not
  155  exceed the length of the marriage.
  156         (8) Long-term Permanent alimony may be awarded to provide
  157  for the needs and necessities of life as they were established
  158  during the marriage of the parties for a party who lacks the
  159  financial ability to meet his or her needs and necessities of
  160  life following a dissolution of marriage. Long-term Permanent
  161  alimony may be awarded following a marriage of long duration if
  162  such an award is appropriate upon consideration of the factors
  163  set forth in subsection (2), following a marriage of moderate
  164  duration if such an award is appropriate based upon clear and
  165  convincing evidence after consideration of the factors set forth
  166  in subsection (2), or following a marriage of short duration if
  167  there are written findings of exceptional circumstances. In
  168  awarding long-term permanent alimony, the court shall include
  169  findings a finding that no other form of alimony will provide
  170  for the needs and necessities of life of the recipient as
  171  established during the marriage of the parties and that no other
  172  form is fair and reasonable under the circumstances of the
  173  parties. An award of long-term permanent alimony remains payable
  174  until terminates upon the death of either party or upon the
  175  remarriage of the party receiving alimony. An award may be
  176  modified or terminated based upon a substantial change in
  177  circumstances or upon the existence of a supportive relationship
  178  in accordance with s. 61.14.
  179         (9) The award of alimony may not leave the payor with
  180  significantly less net income than the net income of the
  181  recipient unless there are written findings of exceptional
  182  circumstances.
  183         (10)(a) With respect to any order requiring the payment of
  184  alimony entered on or after January 1, 1985, unless the
  185  provisions of paragraph (c) or paragraph (d) applies apply, the
  186  court shall direct in the order that the payments of alimony be
  187  made through the appropriate depository as provided in s.
  188  61.181.
  189         (b) With respect to any order requiring the payment of
  190  alimony entered before January 1, 1985, upon the subsequent
  191  appearance, on or after that date, of one or both parties before
  192  the court having jurisdiction for the purpose of modifying or
  193  enforcing the order or in any other proceeding related to the
  194  order, or upon the application of either party, unless the
  195  provisions of paragraph (c) or paragraph (d) applies apply, the
  196  court shall modify the terms of the order as necessary to direct
  197  that payments of alimony be made through the appropriate
  198  depository as provided in s. 61.181.
  199         (c) If there is no minor child, alimony payments need not
  200  be directed through the depository.
  201         (d)1. If there is a minor child of the parties and both
  202  parties so request, the court may order that alimony payments
  203  need not be directed through the depository. In this case, the
  204  order of support shall provide, or be deemed to provide, that
  205  either party may subsequently apply to the depository to require
  206  that payments be made through the depository. The court shall
  207  provide a copy of the order to the depository.
  208         2. If the provisions of subparagraph 1. applies apply,
  209  either party may subsequently file with the depository an
  210  affidavit alleging default or arrearages in payment and stating
  211  that the party wishes to initiate participation in the
  212  depository program. The party shall provide copies of the
  213  affidavit to the court and the other party or parties. Fifteen
  214  days after receipt of the affidavit, the depository shall notify
  215  all parties that future payments shall be directed to the
  216  depository.
  217         3. In IV-D cases, the IV-D agency shall have the same
  218  rights as the obligee in requesting that payments be made
  219  through the depository.
  220         Section 2. Paragraph (b) of subsection (1) of section
  221  61.14, Florida Statutes, is amended, and subsection (12) is
  222  added to that section, to read:
  223         61.14 Enforcement and modification of support, maintenance,
  224  or alimony agreements or orders.—
  225         (1)
  226         (b)1. The court may reduce or terminate an award of alimony
  227  upon specific written findings by the court that since the
  228  granting of a divorce and the award of alimony a supportive
  229  relationship has existed between the obligee and a person with
  230  whom the obligee resides. On the issue of whether alimony should
  231  be reduced or terminated under this paragraph, the burden is on
  232  the obligor to prove by a preponderance of the evidence that a
  233  supportive relationship exists.
  234         2. In determining whether an existing award of alimony
  235  should be reduced or terminated because of an alleged supportive
  236  relationship between an obligee and a person who is not related
  237  by consanguinity or affinity and with whom the obligee resides,
  238  the court shall elicit the nature and extent of the relationship
  239  in question. The court shall give consideration, without
  240  limitation, to circumstances, including, but not limited to, the
  241  following, in determining the relationship of an obligee to
  242  another person:
  243         a. The extent to which the obligee and the other person
  244  have held themselves out as a married couple by engaging in
  245  conduct such as using the same last name, using a common mailing
  246  address, referring to each other in terms such as “my husband”
  247  or “my wife,” or otherwise conducting themselves in a manner
  248  that evidences a permanent supportive relationship.
  249         b. The period of time that the obligee has resided with the
  250  other person in a permanent place of abode.
  251         c. The extent to which the obligee and the other person
  252  have pooled their assets or income or otherwise exhibited
  253  financial interdependence.
  254         d. The extent to which the obligee or the other person has
  255  supported the other, in whole or in part.
  256         e. The extent to which the obligee or the other person has
  257  performed valuable services for the other.
  258         f. The extent to which the obligee or the other person has
  259  performed valuable services for the other’s company or employer.
  260         g. Whether the obligee and the other person have worked
  261  together to create or enhance anything of value.
  262         h. Whether the obligee and the other person have jointly
  263  contributed to the purchase of any real or personal property.
  264         i. Evidence in support of a claim that the obligee and the
  265  other person have an express agreement regarding property
  266  sharing or support.
  267         j. Evidence in support of a claim that the obligee and the
  268  other person have an implied agreement regarding property
  269  sharing or support.
  270         k. Whether the obligee and the other person have provided
  271  support to the children of one another, regardless of any legal
  272  duty to do so.
  273         3. This paragraph does not abrogate the requirement that
  274  every marriage in this state be solemnized under a license, does
  275  not recognize a common law marriage as valid, and does not
  276  recognize a de facto marriage. This paragraph recognizes only
  277  that relationships do exist that provide economic support
  278  equivalent to a marriage and that alimony terminable on
  279  remarriage may be reduced or terminated upon the establishment
  280  of equivalent equitable circumstances as described in this
  281  paragraph. The existence of a conjugal relationship, though it
  282  may be relevant to the nature and extent of the relationship, is
  283  not necessary for the application of the provisions of this
  284  paragraph.
  285         4. A court terminating an alimony award based on the
  286  existence of a supportive relationship may not reserve
  287  jurisdiction to later reinstate alimony.
  288         5. A modification or termination of an alimony award may be
  289  retroactive to the date of filing of the petition for
  290  modification or termination.
  291         (12) The fact that an obligor has reached the normal
  292  retirement age for his or her profession, has retired, and has
  293  no intent to return to work shall be considered a substantial
  294  change in circumstance as a matter of law. In determining
  295  whether the obligor’s retirement is reasonable, the court shall
  296  consider the following factors of the obligor:
  297         (a) Age.
  298         (b) Health.
  299         (c) Motivation for retirement.
  300         (d) Type of work.
  301         (e) Normal retirement age for that type of work.
  302         Section 3. Section 61.19, Florida Statutes, is amended to
  303  read:
  304         61.19 Entry of judgment of dissolution of marriage;, delay
  305  period; bifurcation.—
  306         (1)A No final judgment of dissolution of marriage may not
  307  be entered until at least 20 days have elapsed following from
  308  the date of filing the original petition for dissolution of
  309  marriage,; but the court, on a showing that injustice would
  310  result from this delay, may enter a final judgment of
  311  dissolution of marriage at an earlier date.
  312         (2) During the first 180 days following the date of service
  313  of the original petition for dissolution of marriage, the court
  314  may not grant a final dissolution of marriage with a reservation
  315  of jurisdiction to subsequently determine all other substantive
  316  issues except in exceptional circumstances when it is clearly
  317  necessary for the best interests of the parties or their
  318  children. The desire of one of the parties to remarry does not
  319  justify the use of this process. If more than 180 days have
  320  elapsed following the date of service of the original petition
  321  for dissolution of marriage, the court may grant a final
  322  dissolution of marriage with a reservation of jurisdiction to
  323  subsequently determine all other substantive issues only if the
  324  court enters such other temporary orders as are necessary to
  325  protect the interests of the parties and their children, which
  326  shall remain effective until such time as all other issues can
  327  be adjudicated by the court. The temporary orders necessary to
  328  protect the interests of the children and the parties, which may
  329  be entered before the granting of a dissolution of marriage
  330  without an adjudication of all substantive issues, may include,
  331  but need not be limited to, temporary orders that:
  332         (a) Restrict the sale or disposition of property.
  333         (b) Protect and preserve the marital assets.
  334         (c) Establish support.
  335         (d) Provide for maintenance of health insurance.
  336         (e) Provide for maintenance of life insurance.
  337  
  338  The court is not required to enter temporary orders to protect
  339  the parties and their children if the court enters a final
  340  judgment of dissolution of marriage which adjudicates
  341  substantially all of the substantive issues between the parties
  342  but reserves jurisdiction to address ancillary issues, such as
  343  the entry of a qualified domestic relations order or the
  344  adjudication of attorney fees and costs.
  345         Section 4. This act shall take effect July 1, 2012.