Inside the Minds: Strategies for Family Law in Florida

By Aspatore Books, a Thomson Reuters busines | Family Law Attorney
Posted on July 5, 2011

Strategies for Coping with the Recent Changes to Florida’s Alimony, Time-Sharing, and Child Support Laws: Chapter Preview

Introduction

In my practice I represent clients in all types of alimony and child support cases. Three statutory changes that I believe have had the most significant impact on both my clients and on Florida family law in general are the recent amendments to the alimony statute, the enactment of the supportive relationship statute, and the revision of the existing time-sharing and child support statutes. These advancements in the law have led to substantial differences in the way I now approach family law cases impacted by the changes. In this chapter I will address some of the most salient additions to the law and the strategies I am presently using to best promote the interests of my clients, specifically in the areas of alimony and child support.

Alimony

In 2010, the Florida legislature made several major revisions to Florida’s alimony statute, Fla. Stat. § 61.08 (2010), applicable to initial alimony awards in cases pending on or filed after July 1, 2010. The basis for an award of alimony in Florida has long been one party’s need for financial support and the other party’s ability to pay, as determined by a judicial evaluation of the case facts. In such an evaluation, the trial court considers certain statutory factors including the parties’ standard of living established during the marriage; duration of the marriage; age; physical and emotional condition of the parties; financial resources of the parties—including non-marital and marital assets and liabilities distributed in the divorce; earning capacities, educational levels, vocational skills, the employability of the parties—and when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment; contribution of the parties to the marriage—including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party; and any other factor necessary to do equity and justice between the parties. With the enactment of the 2010 Amendments, a trial judge may now consider three additional statutory factors, namely the:

responsibilities each party has with regard to any minor children they have in common;
tax treatment and consequences to both parties of any alimony award—including the designation of all or a portion of the payment as a nontaxable, nondeductible payment; and
sources of income available to either party—including income available to either party through investments of any asset held by that party.

Obviously these new factors are having an impact on the litigation of longer-term marriages, especially where the parties have significant investment income.

Florida has always recognized that the length or duration of a marriage is directly relevant to an award of alimony, particularly permanent alimony. Under the new law, the durational time frame of a marriage for purposes of an alimony award is now characterized by statute as short-term—less than seven years of marriage; moderate-term—between seven and seventeen years; and long-term—more than seventeen years. An alimony award is no longer appropriate in a short-term marriage in the absence of special circumstances—in other words, a rebuttable presumption exists against an award of alimony in marriages of less than seven years—while an award of alimony in a long-term marriage is presumed to be appropriate by law. Specifically, however, the new amendment has lengthened the amount of time parties must be married before a party will have a strong claim for permanent alimony. As a result, the durational time limits of longer-term marriages are extremely important for purposes of seeking an award of permanent alimony.

As of 2010, the duration of the marriage is also now statutorily measured from the date of the marriage to the date of the filing of a Petition for Dissolution of Marriage. This in effect stops the ticking of the marriage clock and limits the alimony time period from the time the marriage was entered into until the time the petition was filed, rather than the time the final judgment was entered. This can result in the difference between categorizing a marriage as short-, moderate-, or long-term for purposes of an alimony award. With the 2010 creation of “durational alimony,” —an award capped to the length of the marriage for short-term and moderate-term marriages—this distinction can be financially critical, whether you represent the potential payor or payee.

In the past, Florida’s laws and/or courts have recognized several categories of alimony including: temporary—awarded during the divorce proceedings; rehabilitative—intended to help a spouse become self-supporting; permanent—indefinite; with payments paid periodically or by lump sum. Case law also recognized nominal alimony—a minimal amount which could be increased upon a change of circumstances, and bridge-the-gap alimony —a short-term transitional award. In recent amendments, the legislature has not only codified and clarified these different types of alimony, but has also added the category of durational alimony—applicable to short-term marriages.

* * *

Child Support and Time-Sharing

Finally, recent changes to Florida’s child support statutes regarding time-sharing are having a great impact on child support amounts, both in initial and existing support awards. Recognizing that more than one million children in the United States are affected by divorce every year and that numerous studies have documented the resulting loss and alienation suffered by non-custodial parents and children as a direct result of the more traditional custody arrangements, the Florida legislature undertook a major revamp of child custody and support statutes beginning in 2008. At that time, Florida moved away from traditional concepts of “primary residential parents” to concepts of “co-parenting” through “time-sharing arrangements” and “parenting plans.” Custody arrangements in Florida are now based upon developing a parenting plan that allows for open communication between the parties and shared visitation and decision-making. A negotiated time-sharing arrangement and parenting plan are always far preferable to a court ordered plan.

Of the various modifications to Florida’s child support laws, the statutory change that is having perhaps the greatest financial impact on parents is the lowering of the percentage of overnights a non-custodial parent must exercise in order to reduce his or her support obligation. Previously, pursuant to Fla. Stat. § 61.30, the non-custodial parent paying child support was required to show that he or she exercised forty percent (40%) of the time-sharing or visitation—in other words, 146 overnights or more in a year—in order to reduce the existing child support obligation in any way. Under the old law, parents engaged in time-sharing battles in an attempt to exercise more overnight visitation in order to reduce support obligations.

In January 2011, under the 2010 statutory amendment, parents exercising twenty percent (20%) or more overnights—seventy-three or more nights—a year now qualify for an alternate child support calculation called “Substantial Time-Sharing.” Under this calculation, child support is modified in such a way so as to credit the payor parent with the percentage of additional time he or she has with the child(ren) while continuing to take into account his or her percentage of the combined net monthly income. This calculation can result in a significant reduction in the child support obligation and a substantial financial savings to the payor parent, even if he or she has fewer overnights than the other parent. What does this mean from a practical standpoint? Where the statute originally required a parent to exercise significant contact—forty percent (40%) or more of the overnights—in order to achieve any savings in child support, under the current statute a parent can obtain a decrease in his or her child support obligation starting at a nominal amount of time-sharing—twenty percent (20%) of the overnights or more. Florida law in fact holds that a reduction in child support is mandatory whenever a non-custodial parent spends a “substantial amount of time” with the child.

It is extremely important following a divorce that the payor spouse exercise all of the time-sharing afforded to him or her as the failure to do so can provide the payee spouse with an opportunity to seek an increase in the child support obligation. Pursuant to Fla. Stat. § 61.30(11)(c), a “parent’s failure to regularly exercise the court-ordered or agreed time-sharing schedule not caused by the other parent…shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the non-custodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule.” This is important, because normally a litigant may only modify child support back to the date of the filing of the petition to modify the support. This section of the statute can be used effectively to modify child support awards at a much earlier date than can be done for other reasons, for example, a change in employment. Why then is this “magic bullet” rarely used by practicing attorneys? Most family law attorneys have an extremely limited understanding of the rules and statutes that actually govern the practice of family law. A specific knowledge of these laws and their various interactions can be used with great effect in the courtroom. In any event, case law holds that the failure to exercise time-sharing must be continuous in nature—the occasional missed contact will not be sufficient to support a claim for modification. I therefore recommend that the payee spouse keep a detailed calendar of the time-sharing actually exercised by the payor spouse.

Regardless of the above, any determination of parental responsibility, time-sharing schedule, or parenting plan may not be modified without showing “substantial, material, and permanent unanticipated changes or circumstances and a determination that the modification is in the best interest of the child.” Such a determination is made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of the family, including, but not limited to:

The ability and disposition of a parent to consider and act upon the child’s needs and to encourage a close and continuing parent-child relationship;
The ability to be reasonable when changes are required and to honor the time-sharing agreement;
The geographic viability of the time-sharing plan with special attention to the needs of school age children and the amount of time to be spent traveling to effectuate the plan;
The length of time the child has lived in a stable, satisfactory environment and the desirability to maintain continuity;
The parties’ physical and mental health;
The parties’ moral fitness;
The child’s reasonable preference;
The home, school, and community record of the child;
Any evidence of child abuse, neglect, abandonment, or exposure to violence;
The parties’ demonstrated capacity to provide nutritious meals, scheduling, routine, and discipline;
The parties’ demonstrated knowledge, capacity, and disposition to be informed of the circumstances of the child including friends, teachers, medical care, daily activities, and favorite things;
The parties’ demonstrated capacity to communicate and keep one another informed regarding the child;
The parties’ demonstrated capacity to participate and be involved in a child’s school and extra-curricular activities;
The parties’ capacity to shield the child from ongoing litigation and to refrain from making disparaging remarks about the other party;
The parties’ demonstrated capacity to maintain an environment for the child free from substance abuse;
The parties’ demonstrated capacity to meet the developmental needs of the child; and
Any evidence that the parties have lied to the court especially with respect to child neglect, abandonment, or violence.

Conclusion

The trend in Florida in all of these areas is toward a singularly cut-and-dry financial evaluation of the facts in each case. Documentary evidence, electronic discovery, and expert witnesses are becoming increasingly important in complex family law cases. My advice is to read the advance sheets, keep abreast of the changes in the law, and read the Family Law periodicals, journals, books, and blogs. You should know what is going on in the courts around you, both at the local and state levels. Talk to other attorneys to discern how the judges in your circuit are ruling on key issues. In court—be prepared. Do your research and have supporting case law for your judge. Despite the recent changes to the law, Florida judges continue to have much discretion in family law cases. Often you may sway a judge to rule in your client’s favor simply by having a few relevant cases in hand.