Ocala Divorce Lawyer Blog

On July 1, 2011, changes to section 61.08, Florida Statutes went into effect. This is the section of Chapter 61 that governs an award (or lack thereof) of Alimony. These small or "tweaking" changes narrow the circumstances under which permanent, periodic alimony will be awarded. The new portions of the Alimony Statute are found below, with the changes underlined:

61.08 Alimony.--

(2) In determining whether to award 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 under subsections (5)-(8), the court shall consider all relevant 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) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

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

(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.

The Los Angeles Times had an interesting article recently which explains the impact of divorce and remarriage on receipt of Social Security funds. Nearly 50 percent of marriages will end in divorce, and many retirees are not married because of divorce. Social Security benefits are the main source of income for over 70 percent of unmarried retirees, so it is important for individuals to learn how previous marriages can affect their plans for retirement.

Social Security sends out quarterly statements to help people plan for their retirement and estimate their benefits. However, these statements fail to properly address the impact divorce has on future benefits. In fact, divorced people often make costly errors because they don't understand spousal and survivor benefits, said Leslie Walker, communications director for the Social Security Administration in Richmond, Calif. "The closer you get to retirement age, the more you need to know the rules.

You may claim spousal benefits if you were previously married for 10 years and if your spouse was paying Social Security taxes during that time. If you worked for at least 10 years and paid Social Security taxes, you may be eligible for personal benefits as well. You cannot claim both spousal and personal benefits, but you can claim the option that gives you the larger amount of money.

However, if you remarry prior to turning 60 years old, you become ineligible to spousal benefits from a previous spouse . If you wait to remarry until after turning 60, you can retain rights to spousal or survivor benefits. Most divorce lawyers are incompletely unversed on the impact on a "gray divorce" and collecting social security.

Survivor benefits are a preferred option since you are given 100 percent of your former spouse's benefits as opposed to 50 percent from spousal benefits. If you have been married twice and both of your spouses are deceased, you cannot claim benefits for both spouses. However, you may choose the benefits from the spouse that would pay you the most.

If you are thinking about divorce or facing a family law related matter, please see our website for more information on your legal options or call Ocala Divorce and Family Law attorney at the Law Office of Anne E. Raduns, PA to find out how we can help. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation. Call for your appointment today.

A story from Tampa Bay Online, shows that sometimes being done does not really mean being done. The Florida legislature is considering another redo of the statues that govern Florida family law, Chapter 61. And although they just finished "tinkering" with the statute just last year, they are now proposing to further amend spousal support requirements for those who are ordered to pay alimony.

"We want to do things equitably and fairly," said Rep. Kelli Stargel. She said she knows men who have been ordered to pay so much in alimony that they're unable "to live their lives." Some told her that they would be better off financially if they simply stopped working. Representative Stargel is pushing a proposal that would stop the state's courts from automatically awarding permanent alimony when there's a divorce after a long marriage. The bill's proponents say it would also include safeguards to prevent the person paying alimony from becoming worse off financially than that the person on the receiving end of spousal support.

Last month, the House Civil Justice Subcommittee voted unanimously to approve Stargel's proposal protecting those who pay alimony. A similar bill is in the Senate, but has not yet been voted on.

A 56-year-old man interviewed for an article on the bill said it needs to go further in remaking Florida law. He was divorced in 2007 following 27 years of marriage. He said he was ordered by a court to pay $2,000 a month in permanent alimony from his $66,000 per year salary. He claims his ex-wife worked throughout their marriage, only to quit her job during their divorce.

Another divorced man said the proposed legislation "will stop the easy payoff, this easy money these women are getting." He claims he pays $700 per month out of a yearly income of $17,000.

When courts award spousal support they must look to the statutory factors of Chapter 61.08 that guides the award of spousal support, and are supposed to consider need vs. ability to pay, income, the couple's marriage lifestyle, the length of their marriage, their ages and health conditions, the contributions the two parties made to the marriage, assets and other factors.

If you are thinking about divorce or facing a family law related matter, please see our website for more information on your legal options or call Ocala Divorce and Family Law attorney at the Law Office of Anne E. Raduns, PA to find out how we can help. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation. Call for your appointment today.

There have been recent changes to Florida Statute §61.08, significantly affecting Florida alimony laws. This bill was signed into law over the summer and will not apply to all pending divorces.

The changes apply to all alimony awards entered on or after July 1, 2010. The updated statute cannot be used as the basis for a modification of an alimony award determined before July 1 2010. The changes bring some clarity to what has long been a very murky area of family law. The updated statute provides Judges additional guidance in making alimony award determinations and actually provide some bright-line rules. The first step is still a factual determination as to the financial status of the couple involved, focusing on the party's need for alimony and the other's party's ability to pay alimony.

Prior to the recent changes, a court had the authority to consider a number of factors as it determined whether alimony should be granted, and if so, in what amount. Those factors included:

a) The standard of living enjoyed by the couple;

b) The duration of the marriage;

c) Age and physical and mental condition of the parties;

d) The financial resources of each party;

e) Earning capacity, as well as education, skills and employability of the parties;

f) Contributions by the parties to the marriage;

g) Any other factors the court determines are relevant to an equitable alimony arrangement.

Under the new statute, there are now three additional factors for a judge to consider when making an alimony award in Florida:

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

b) 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.

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

Under the new alimony statute, marriages are divided into three categories of duration and more concrete time frames are provided for categorizing a marriage's duration. The new law lengthens the amount of time the marriage must last before permanent alimony becomes a strong claim.

a) Short-term: less than seven years of marriage;

b) Moderate: between seven and 17 years;

c) Long-term: more than 17 years of marriage.

Continue reading "New Changes to Alimony Statute in Florida Divorce" »

Divorce in Florida, especially alimony and child support have been changed when House Bill 907 was signed into law yesterday. This bill was merely waiting for the signature of the Governor, as it had passed the House and the Senate.

Florida's alimony laws have been under consideration for change for some time. The statute which previously guided our Judges on issues of alimony was ambiguous at best, because it lacked clear definitions of "duration" for the award of alimony or types to be considered. It was basically a case-by-case analysis with the aid of case law. Lawyers knew what to do with very short term marriages and long-term marriages but everything else was a "best guess." The new law gives the Court more guidance as far as length of marriage and other factors to consider. The following have been codified by this bill:

1. Adds "durational" alimony or alimony for a set period of "short" or "moderate" period of time.

2. Adds specific guidelines for length of marriage, and defines various types of alimony. Allows for award of more than one type of alimony; and revises factors to be considered in whether to award alimony or maintenance

3. Adds tax consequences and child care responsibilities as factors the court should consider when awarding alimony.

4. Recognizes "bridge-the-gap" short-term alimony so that those in the 5th District Court of Appeal (which includes Ocala, Inverness, Bushnell) will finally have access to this type of support.

A big change on the child support side of the bill was that it added back the 25% of daycare that was taken away. So now instead of getting a 75% credit for paying daycare, the parent that is paying it gets 100% credit, Also, another HUGE change was that "substantial Parenting Time" was reduced from 40% time-sharing (or 147 overnights) down to 20% time sharing (73 overnights). Hopefully, this will mean less fighting over that "mid-week overnight."

If you are thinking about divorce, please call us to talk your case. Visit our website or call the office to schedule your low-cost consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

A retainer fee is a form of pre-payment, like a "savings account" with your lawyer, against which the lawyer will bill when handling your case. This advanced fee ensures that the attorney will provide the specified legal services on behalf of the client. Think of it as a down payment on the services the attorney provides. The funds, which are usually non-refundable in most family law cases, and are then place in the attorney's or law firm's business account where they have access to it to pay any upcoming services that are rendered on behalf of the client. If the fees go above the retainer amount, the client must pay that amount. The retainer fee is just an initial estimate and is often based on the complexity of the case. If there are more complex issues involved, then naturally the higher the retainer amount. Additional fees beyond the retainer are often required when a matter must go to court.

Before accepting to pay a retainer fee, get the fee, terms and conditions in writing. The most widely used forms of advance payment are "the general (or traditional) retainer", "the special (or specific) retainer," the "flat fee retainer," or "the nonrefundable retainer." Before you hire a lawyer for your divorce or family law matter, make sure you have read, reviewed and understood the Retainer Agreement the attorney has given you. You are signing a binding contract between you and your lawyer. You should be clear on what you will be billed for - such as phone calls, emails, letters and other communications. You should ask all questions before you sign the agreement.

You should be sure that you will be receiving monthly statements showing you (the client) how your retainer funds are being used. The billing statement should be clear and easy to understand and show what work was performed and by whom. If you have any questions about your billing statement, you should always contact the attorney immediately, as sometimes mistakes are made.

If you are going through a divorce or family law matter, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

There has been much litigation in Florida about whether retiring is a material and significant change in circumstances to warrant a downward modification of permanent alimony. There is binding case law from the Florida Supreme Court that says that a payor spouse can retire, and can modify permanent alimony, as long as it does not put the recipient spouse in the peril of poverty. The Florida Supreme Court in Pimm v. Pimm, 601 So.2d 534,1992 held that husband's retirement was change of circumstance that could be considered together with other relevant factors and applicable law upon petition to modify. However, the Court in Pimm also held that a trial court should consider that even at age of sixty-five or later, a payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty. Thus, the court should consider the needs of the receiving spouse and the impact a termination or reduction of alimony would have on him or her.

What does this mean? Sometimes it means that retiring is delayed because of an Alimony obligation. Should people have to work past the age of retirement because of an obligation to pay another person support? Is this fair? Should someone have to continue to work well into his/her 70s or 80s? Shouldn't a person be allowed to retire? On the other hand, should someone be allowed to retire in order to escape the necessity of paying alimony?

As recently as this past month, courts around the county are grappling with this issue as people are living longer lives - often into their 80s. Below is a link to a good article from Boston that deals with what our Florida Supreme Court dealt with in Pimm: http://www.boston.com/news/local/massachusetts/articles/2009/11/10/divorce_may_mean_retiring_is_delayed/

If you are involved in a Family Law or Divorce case and want more information, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation. Call for your consultation today.