Florida Senate - 2012 SENATOR AMENDMENT
Bill No. CS for SB 752
Senate . House
Floor: WD .
03/08/2012 08:58 AM .
Senator Diaz de la Portilla moved the following:
1 Senate Amendment (with title amendment)
3 Between lines 111 and 112
5 Section 3. Section 61.08, Florida Statutes, is amended to
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
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
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
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
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
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
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
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.
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
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
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
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.
391 ================= T I T L E A M E N D M E N T ================
392 And the title is amended as follows:
394 Delete line 18
395 and insert:
396 application of the formulas is not equitable; amending
397 s. 61.08, F.S.; requiring the court to make written
398 findings regarding the basis for awarding combinations
399 of alimony, including the type of alimony and length
400 of time for which it is awarded; requiring the court
401 to make written findings regarding specified factors
402 the court must consider when awarding alimony;
403 providing that the court may order security to protect
404 an award of alimony; requiring that any such security
405 may be awarded only upon a showing of special
406 circumstances; providing that if the court finds
407 special circumstances and awards such security, the
408 court must make specific evidentiary findings
409 regarding the availability, cost, and financial impact
410 on the obligated party; requiring a court, if awarding
411 long-term alimony, to make findings that no other form
412 of alimony will provide for the needs and necessities
413 of life as established during the marriage of the
414 parties and that no other form of alimony is fair and
415 reasonable under the circumstances of the parties;
416 amending s. 61.14, F.S.; providing that for purposes
417 of considering a petition for modification of an
418 alimony award and absent exceptional circumstances, an
419 increase or decrease in either party’s income may not
420 be considered permanent in nature unless the increase
421 or decrease has been maintained without interruption
422 for at least 6 months; authorizing the court to award
423 the other party his or her reasonable attorney fees
424 and costs if the court determines that a party
425 unnecessarily or unreasonably litigated the underlying
426 petition for modification or termination; specifying
427 criteria to determine whether the obligor’s retirement
428 age is reasonable; amending s. 61.19, F.S.; revising
429 procedures for issuing judgments for dissolution of
430 marriage; providing that temporary orders necessary to
431 protect the parties and their children must be entered
432 before granting a dissolution of marriage without an
433 adjudication of all substantive issues;