Attack on Permanent Alimony in Florida Is Unjust and Unnecessary, by Martin Kofsky, Esq.

This blog was also published in the Daily Business Review.

Law can be a tricky field to navigate, and that is multiplied when it comes to the world of family law. Divorce, especially when it involves a marriage of significant length, often involves the wholesale restructuring of people’s lives.

Any legal decision in a divorce case can have an immediate and lasting impact on the spouses and the children. This is why the one-size-fits all approach to family law simply does not work.

There has been an attack on alimony here in Florida, and now it is at a fever pitch. Similar bills seek to put an end to permanent alimony, House Bill 231 and Senate Bill 718, and are making their way up the legislative ladder. These bills will dramatically change the alimony landscape and the chances include the elimination of permanent alimony and limiting judicial discretion.

Permanent alimony is a bit of a misnomer. It’s not actually permanent. It is always modifiable when awarded by a judge. A judge is not allowed to authorize non-modifiable alimony unless both parties agree to it. Under current law, permanent alimony can only be awarded when the court determines no other form of alimony is equitable to both parties. Permanent alimony is a last resort, when no other solution exists. To eliminate that solution would be bad law, and could do serious damage to Florida’s families.

What HB 231 and SB 731 seek to do is fix a problem that isn’t there. Proponents claim that current regulations are out-of-date and unfair, but it’s an utter distortion of the truth.

It shouldn’t surprise you that the people pushing this bill are ‘victims’, as they call themselves, of permanent alimony. They’ve saturated the media with self-serving ‘egregious’ examples of alimony abuse in order to outrage you, but they are not presenting the whole story.

Under the guise of ‘fairness’, SB 718 and HB 231 will take the power away from judges and install unnecessary limits on alimony. These changes will financially devastate many Floridians, particularly women. The bill eliminates permanent alimony, limits durational alimony to 50 percent of the length of the marriage, and creates arbitrary “alimony guidelines.” While some of the more recent versions of the law provide opportunities to rebut the guidelines, the changes ultimately will create more litigation and tip the balance of power in favor of the more financially secure spouse.

These proposed changes are fundamentally unfair and will leave thousands in poverty. They take the old system, made by the Court following a reasoned and fair analysis of a series of factors, and establish hard and fast rules that benefit some, but devastate many others.

Right now the judge is the person responsible for determining the facts and holding a spouse’s feet to the fire. These bills would eliminate judicial direction and completely undermine the legal process.

We’ve seen what happens when you try cookie cutter justice. Mandatory sentencing guidelines have robbed judges of their ability to make judgment calls, and people have been unfairly punished as a result.

SB 719 and HB 231 leave little wiggle room, particularly where it is most often needed. They eliminate standard of living as a factor in determining alimony, and prohibit the court from considering a party’s non- marital resources that were not relied upon during the marriage. The bill terminates alimony automatically upon the obligor’s reaching normal retirement age for social security retirement benefits, even if he is wealthy and she cannot support herself.

The legislation also allows former spouses who entered into marital settlement agreements to go back and modify the provisions of those agreements based on the proposed changes to the statute without showing any substantial change in circumstances.

It will potentially wipe out thousands of prior determinations and it will flood the courts with repeats of old cases.

What bothers me so is this legislation is completely unnecessary. If you believe Florida Alimony Reform, the group promoting these bills, there is an epidemic of greedy ex-spouses who have abused permanent alimony awards to live lavish lifestyles at their expense of their former husbands or wives.

This is a gross misnomer, because judges don’t just award it willy-nilly. In fact it is not typically awarded in most divorce cases.

There are so many thresholds a judge must cross before awarding permanent alimony. The length of the marriage, the ability of one spouse to pay, and the other spouse’s financial needs are always considered.

There are 10 factors, including standard of living, which are used to determine where alimony is appropriate. And no single factor is allowed to trump another.

There is no requirement, as the law stands, to grant anyone alimony. There is no victimization of either gender.

There are circumstances, even in 2013, where a spouse puts their life on hold to raise the family or for the benefit of the other spouse. It may not be as prevalent as it was 40 years ago but it does happen. Neither spouse should be short changed because of their role in the marriage but spouses will be short-changed if fill-in-the-blank alimony becomes the law of the land.

Fairness, flexibility and justice should direct our courts, not punitive, arbitrary and unnecessary rules.

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