Florida Family Law – Changes To The Divorce, Alimony & Child Support Statutes

Recently, significant revisions were made to Chapter 61 of the Florida Statutes.  David and I prepared this outline of those changes for the mediators attending MTG's Continuing Mediator Education  programs.

CHILD SUPPORT

Effective October 1, 2010 Section 61.29 is created to read:

61.29 Child support guidelines; principles.—The following principles establish the public policy of the State of Florida in the creation of the child support guidelines:

(1)          Each parent has a fundamental obligation to support his or her minor or legally dependent child.

(2)          The guidelines schedule is based on the parent’s combined net income estimated to have been allocated to the child as if the parents and children were living in an intact household.

(3)          The guidelines encourage fair and efficient settlement of support issues between parents and minimizes the need for litigation.

Effective January 1, 2011 Section 61.30(2), Florida Statues, which addresses imputed income for the purposes of calculating child support is amended as follows:

If the information concerning a parent’s income is unavailable, a parent fails to participate in a child support proceeding, or a parent fails to supply adequate financial information in a child support proceeding, income shall be automatically imputed to the parent and there is a rebuttable presumption that the parent has income equivalent to the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census.  However, the court may refuse to impute income to a parent if the court finds it necessary for that parent to stay home with the child who is the subject of a child support calculation or as set forth below:

1.    In order for the court to impute income at an amount other than the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census, the court must make specific findings of fact consistent with the requirements of this paragraph. The party seeking to impute income has the burden to present competent, substantial evidence that:

a.    The unemployment or underemployment is voluntary; and

b.    Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

2.    Except as set forth in subparagraph 1., income may not be imputed based upon:

a.    Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or

b.    Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties’ existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

Effective January 1, 2011 Section 61.30(6), Florida Statues, is amended so that the 25% reduction that was previously considered when calculating work related child care costs is no longer a factor. Instead calculate each parents’ costs of work related child care based on his/her percentages of the combined net income.

Effective January 1, 2011 Section 61.30(11)(a)11(b)8 is amended so that “substantial amount of time” means that a parent exercises timesharing at least 20 percent of the overnights of the year. And a parent’s failure to regularly exercise the court-ordered or agreed time-sharing schedule not caused by the other parent which resulted in the adjustment of the amount of child support 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 noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule.

NOTE:  40% (or 146 overnights) was removed from the calculation.  We now use the “gross up method” when both parents have at least 20% or 73 overnights a year.

Effective January 1, 2011 Section 61.45 is amended and the “Child Abduction Prevention Act” outlines the courts increased authority relating to child abduction prevention.

Effective July 1, 2011 Section 61.13002 is amended so that a parent assigned to military service may designate someone else to exercise time-sharing with a child on the parent’s behalf.

Effective July 1, 2010 Section 751 is amended in order to better address the needs of children living with extended family members in temporary or “concurrent custody.”

Effective October 1, 2010 Section 61.13 is amended so that:

1.    The court may at any time order either or both parents to pay support to the other parent or to a third party who has custody in accordance with the child support guidelines.

2.    All child support orders and income deduction orders entered on or after October 1, 2010, must provide:

a.             For child support to terminate on a child’s 18th birthday unless 743.07(2) applies or the parties agree otherwise. (743.07(2) addresses incapacitated dependents between the ages of 18 and 19 who are still in high school and performing in good faith with a reasonable expectation of graduation before the age of 19.)

b.            A schedule, based on the record existing at the time of the order, stating the amount of the monthly child support obligation for all the minor children at the time of the order and the amount of child support that will be owed for any remaining children after one or more of the children are no longer entitled to receive child support; and

c.             The month, day, and year that the reduction or termination of child support becomes effective.

Here are two examples of the schedules we are using – one using the standard method and one using the “gross-up” method.

TIME SHARING LESS THAN 20%

1)    Child Support Calculations.

a)    The child support payments set forth above are based upon the representation that John earns a net monthly income of $3,184 and Mary earns a net monthly income of $3,353.  This combined net total monthly income of $6,537 requires a basic child support payment of $2,278.  Based on these incomes, John is responsible for 49%, or $1,110 and Mary is responsible for 51%, or $1,168.

b)    Child Support Schedule. Based on these net incomes and our agreed time sharing with our children, the following schedule shows (i) the amount of John’s monthly child support obligation for our three children, (ii) the amount of child support John will owe for any remaining children after one or more of our children are no longer entitled to receive child support, and (iii) the month, day, and year that we anticipate that the reduction or termination of child support will become effective.

Number of Children Entitled to Child Support 

Child Support Amount Date Child Support Amount Will Become Effective (The occurrence of any of the following will result in an earlier effective date: a child becomes emancipated, marries, dies, enters military service, leaves the household or otherwise becomes self-supporting)
Three $1,110 January 1, 2011
Two $886 Gloria’s 18th birthday, November 14, 2015
One $570 Sarah’s 18th birthday, August 3, 2017
None $0 James’s 18th birthday, March 2, 2020

EACH PARENT HAS 20% OR GREATER TIME SHARING

a)      Child Support Calculations. The child support payments set forth above are based upon the following representations:

i)        John earns a net monthly income of $3,000 and Mary earns a net monthly income of $1,000 and

ii)       Each year our children will spend 109 or 30% of their overnights with John and 256 or 70% of their overnights with Mary.

iii)     We have a combined projected net total monthly income of $4,000 of which John earns 75% and Mary earns 25% and the “gross up” or “substantial shared parenting” provisions for calculating child support apply because our children will spend at least twenty percent (20%) of their overnights with each parent.

iv)     Our combined net total monthly income of $4,000 would require a basic monthly child support payment of $1,603 per the Florida child support chart. The gross up method increases this amount to $2,405 (This amount is one and one half (1.5) times $1,603).

v)      Applying the gross up method to the child support calculation from the Florida child support chart using the above numbers results in monthly child support due from John to Mary of $1,085.

b)      Child Support Schedule. Based on these net incomes and our agreed time sharing with our children, the following schedule shows (i) the amount of John’s monthly child support obligation for our three children, (ii) the amount of child support John will owe for any remaining children after one or more of our children are no longer entitled to receive child support, and (iii) the month, day, and year that we anticipate that the reduction or termination of child support will become effective.

Number of Children Entitled to Child Support Child Support Amount Date Child Support Amount Will Become Effective (Earlier occurrence of any of the following will result in an earlier effective date: a child becomes emancipated, marries, dies, enters military service, leaves the household or otherwise becomes self-supporting)
Three $1,085 January 1, 2011
Two $872 Gloria’s 18th birthday, Nov 14, 2015
One $561 Sarah’s 18th birthday, Aug 3, 2017
None $0 James’s 18th birthday, March 2, 2020

ALIMONY

Additional changes to the alimony statute will be effective July 1, 2011. These changes are in italics.

Effective July 1, 2010 Section 61.08, was amended so that Section 61.08 now:

  • allows for an award of more than one type of alimony;
  • revises the factors to be considered in awarding alimony;
  • provides a rebuttable presumption for the classification of the length of a marriage;
  • provides for the determination of the length of a marriage;
  • provides for an award of non-modifiable bridge-the-gap alimony for a limited period;
  • provides for an award of modifiable rehabilitative alimony in certain circumstances;
  • provides for an award of modifiable durational alimony in certain circumstances;
  • provides for an award of modifiable permanent alimony in certain circumstances.

 

(1)  In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be bridge-the-gap, rehabilitative, durational, or permanent in nature or any combination of these forms of alimony. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.

 

(2)  In determining whether to a proper award of alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance, the court shall consider all relevant economic factors, including, but not limited to:

 

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) The earning capacities, educational levels, vocational skills, and 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.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to any minor children they have in common.

(h) The 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.

(i)(g) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) The court may consider Any other factor necessary to do equity and justice between the parties.

 

(3)  To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.

 

(4)  For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.

 

(5)  Bridge-the-gap alimony may be awarded to assist a party by providing support to allow the party to make a transition from being married to being single. Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short-term needs, and the length of an award may not exceed 2 years. An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award of bridge-the-gap alimony shall not be modifiable in amount or duration.

(6)  (a) Rehabilitative alimony may be awarded to assist a party in establishing the capacity for self-support through either:

  1. The redevelopment of previous skills or credentials; or
  2. The acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.

(b) In order to award rehabilitative alimony, there must be a specific and defined rehabilitative plan which shall be included as a part of any order awarding rehabilitative alimony.

(c) An award of rehabilitative alimony may be modified or terminated in accordance with s. 61.14 based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan.

(7)  Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis. An award of durational alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances in accordance with s. 61.14. However, the length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.

(8) Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. Permanent alimony may be awarded following a marriage of long duration, if such an award is appropriate upon consideration of the factors set forth in subsection (2), following a marriage of moderate duration if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set forth in subsection (2), or following a marriage of short duration if there are written findings of exceptional circumstances.  In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship in accordance with s. 61.14.

(9) The award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.

Section 80.  Effective July 1, 2011, the amendments to s.61.08, Florida Statutes, made by this act apply to all initial awards of alimony entered after July 1, 2011, and to all modifications of alimony of such awards made after July 1, 2011.Such amendments may not serve as a basis to modify awards entered before July 1, 2011, or as a basis to change amounts or duration of awards existing before July 1, 2011. The amendments to s. 61.08, Florida Statutes, made by this act are applicable to all cases pending on or filed after July 1, 2011.

Questions to the mediators:

1.  Considering these definitions for various types of alimony, what do you call it if the parties want to structure alimony in a way that does not fit one of these definitions?  For instance, what would you call modifiable alimony with a duration of seven years?

2.  Considering these definitions for various types of alimony, is it correct to say that only permanent alimony terminates upon the existence of a supportive relationship while bridge-the-gap, rehabilitative, and durational alimony terminate only upon remarriage.  Will this be a sticking point for payors?  What would you call alimony that is durational but terminates upon the existence of a supportive relationship?

3. Do the math.  Using the new 20% cut off for the “gross-up” method, if a parent’s percentage of overnights is less than 1/3 of that parent’s percentage of net income (for instance the parent has 25% of the overnights and 80% of the income) that parent has to pay the other parent more child support than if that parent did not have the children at all.  Was this a miscalculation on the part of the legislature?

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