This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1395a.CIV
DATE: 1/28/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1395 Dissolution of Marriage
SPONSOR(S): Civil Justice & Property Rights Subcommittee, Persons-Mulicka
TIED BILLS: IDEN./SIM. BILLS: SB 1796
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 13 Y, 5 N, As CS Mathews Jones
2) Judiciary Committee
SUMMARY ANALYSIS
Chapter 61, F.S., governs domestic relations, including actions for dissolution of marriage (DOM), child
custody, child support, and alimony. Alimony is a court-ordered payment from one spouse to another, most
commonly awarded for support or maintenance during a pending action for DOM and after a DOM is final.
Florida currently recognizes five main types of alimony: temporary, bridge-the-gap, rehabilitative, durational,
and permanent. In determining the type, amount, duration, and later modification or termination of an alimony
award, the court has broad discretion but may only award alimony after initially determining that one spouse
needs alimony and the other spouse is able to pay alimony. If a court awards or denies an alimony request, it
must consider enumerated factors and may consider the adultery of either spouse or any other factor it finds
necessary to achieve equity and justice between the parties. An alimony award may be modified or terminated
when the circumstances or financial ability of either party changes, including changes due to a receiving
spouse’s supportive relationship or a paying spouse’s retirement.
Section 61.13, F.S., provides guidelines to assist courts in determining matters related to parenting and time-
sharing of minor children in actions under ch. 61, F.S., in accordance with the best interests of the child while
balancing the rights of parents.
CS/HB 1395 prohibits the award of permanent alimony. As such, the types of alimony that a court may award
include bridge-the-gap, rehabilitative, and durational alimony. The bill increases the current presumptions
relating to the length of a marriage and clarifies which types of alimony are available depending on the length
of the marriage in question.
The bill prohibits an award of alimony if the obligor has met certain requirements for retirement prior to the date
the petition for DOM was filed unless the obligee would otherwise be left in a financially destitute situation.
Further, the bill permits the court to consider the reasonableness of an obligor’s voluntary retirement as a
reason to terminate an alimony award. The bill authorizes modification or termination of alimony based on the
obligor’s retirement with certain exceptions.
The bill creates a presumption that equal timesharing is in the best interest of the minor child or children in
common to the parties.
The bill allows for bifurcation of a DOM proceeding after 2 years has elapsed since the petition was filed, and
authorizes the court to enter temporary orders on substantial issues until such issues can be ultimately
decided.
The bill is not likely to have a fiscal impact on state or local government, but may have a fiscal impact on the
private sector and spouses who rely on alimony payments.
The bill provides an effective date of July 1, 2022, and its provisions apply to any action pending on or after
that date. STORAGE NAME: h1395a.CIV PAGE: 2
DATE: 1/28/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Chapter 61, F.S., governs domestic relations actions including actions for dissolution of marriage
(DOM), alimony, parental rights, timesharing, and child support.
While alimony is created and guided by statute, it is also governed by case law. The leading alimony
case, Canakaris v. Canakaris,
1
sets forth many of the general concepts of alimony but confirms that the
ultimate decision in awarding alimony should be within the court’s discretion.
2
However, the Florida Supreme Court has also explained that:
[t]he discretionary power that is exercised by a trial judge is not, however, without
limitation…The trial court's discretionary power is subject only to the test of
reasonableness…Judges dealing with cases essentially alike should reach the same
result. Different results reached from substantially the same facts comport with neither
logic nor reasonableness.
3
In the 42 years since Canakaris was decided, the Legislature has provided greater statutory guidance
by codifying many alimony concepts in case law; and case law has continued to narrow the exercise of
judicial discretion. Despite these changes, disagreement exists regarding the court’s exercise of broad
discretion in determining alimony awards.
4
Alimony Generally
Background
Alimony, also known as spousal support or spousal maintenance, is a court-ordered payment from one
spouse to another at any time before, during, and after DOM. Alimony is most commonly awarded for
support or maintenance during a pending action for DOM and after a DOM is final, but it may also be
awarded without an accompanying DOM action.
5
A person who receives payment pursuant to an order
establishing, enforcing, or modifying an alimony obligation is called an obligee,
6
and a person
responsible for making payments pursuant to an order is called an obligor.
7
The court may award alimony only after determining that one spouse actually needs alimony and the
other spouse is able to pay alimony.
8
When determining the appropriateness of a particular alimony
award, there is a rebuttable presumption that a:
Short-term marriage lasts less than 7 years;
Moderate-term marriage lasts more than 7 years but less than 17 years; and
Long-term marriage lasts 17 years or more.
9
1
Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).
2
Id. at 1200-02 ("In considering the appropriate criteria for the award of the different types of alimony, it is important that appellate
courts avoid establishing inflexible rules that make the achievement of equity between the parties difficult, if not impossible . . .
Dissolution proceedings present a trial judge with the difficult problem of apportioning assets acquired by the parties and
providing necessary support. The judge possesses broad discretionary authority to do equity between the parties and has
available various remedies to accomplish this purpose . . . As considered by the trial court, these remedies are interrelated; to
the extent of their eventual use, the remedies are part of one overall scheme").
3
Id. at 1203.
4
See Bacon v. Bacon, 819 So. 2d 950, 954 (Fla. 4th DCA 2002) (Farmer, J., concurring) (opining that broad discretion in alimony
awards is no longer justifiable and should be discarded in favor of guidelines; proposing that 35 percent of obligor’s income is a
reasonable range).
5
S. 61.09, F.S.
6
S. 61.046(12), F.S.
7
S. 61.046(13), F.S.
8
S. 61.08(2), F.S.
9
S. 61.08(4), F.S. STORAGE NAME: h1395a.CIV PAGE: 3
DATE: 1/28/2022
In determining the appropriate amount of alimony, the court’s award may not leave an obligor with
significantly less net income than the obligee, absent exceptional circumstances.
10
The court may order
an obligor to pay alimony in periodic payments, lump sum payments, or a combination of the two.
11
The
court may also require an obligor to maintain life insurance or a bond, or to otherwise secure an
alimony award, to safeguard an obligee’s support in the event the obligor dies unexpectedly or
untimely.
Types of Alimony
Florida recognizes five main types of alimony:
12
temporary, bridge-the-gap, rehabilitative, durational,
and permanent.
Temporary Alimony
Temporary alimony may be awarded to either spouse while a DOM action is pending.
13
The standard
for awarding temporary alimony is the same as when a trial court considers a request for permanent
alimony which includes substantial evidence of each party’s need and ability to pay.
14
Temporary
alimony may be awarded regardless of the duration of the marriage.
15
Temporary alimony may be paid
by reimbursement or prepayment.
16
Bridge-The-Gap Alimony
Bridge-the-gap alimony is awarded to “assist a spouse with any legitimate, identifiable, short-term
need” while a spouse is transitioning from married life to single life.
17
An award of bridge-the-gap
alimony must be based upon competent, substantial evidence of the obligee’s legitimate, identifiable
short-term needs and may not exceed two years in duration.
18
Bridge-the-gap alimony may be paid to
the obligee and may be tailored for specific expenses and needs.
Rehabilitative Alimony
An award of rehabilitative alimony must include the obligee’s rehabilitative plan.
19
There is no
statutorily-defined maximum duration of an award of rehabilitative alimony; however, the length of time
for the award must be identified in the order and must specify when such award may be modified or
terminated.
20
Generally, rehabilitative alimony is used for a spouse to cover the costs of obtaining the
skills or education necessary to support himself or herself.
21
However, a spouse who was self-sufficient
at the time of DOM may still be eligible for rehabilitative alimony to pursue training or education to allow
him or her greater earning potential in his or her chosen career.
22
Durational Alimony
10
S. 61.08(9), F.S.
11
For lump sum alimony to be awarded, there must be a showing of need and ability to pay as well as unusual circumstances which
require non-modifiable support and justification that does not substantially endanger the payor’s economic status. Rosario v. Rosario,
945 So. 2d 629, 632 (Fla. 4th DCA 2006).
12
Alimony may also be awarded to a spouse in an action for support unrelated to a DOM action. If a spouse has the ability to contribute
to the maintenance and support of his or her spouse and minor children but fails to do so, the spouse in need may apply to the court for
alimony and child support without seeking a DOM. S. 61.09, F.S
13
S. 61.071, F.S.
14
De Gutierrez v. Guttierrez, 19 So. 3d 1110 (Fla. 2d DCA 2009); Fonderson v. Lairp, 98 So. 3d 715 (Fla. 2d DCA 2012); Driscoll v.
Driscoll, 915 So. 2d 771, 773 (Fla 2d DCA 2005).
15
Littlejohn v. Littlejohn, 495 So. 2d 271, 272 (Fla. 2d DCA 1986).
16
S. 61.08(5), F.S. is silent as to the manner of payment for a bridge-the-gap alimony award. See Horowitz v. Horowitz, 273 So. 3d 263
(Fla. 2d DCA 2019).
17
Borchard v. Borchard, 730 So. 2d 748, 753 (Fla. 2d DCA 1999); see also Landow v. Landow, 824 So. 2d 278, 279 n. 1 (Fla. 4th DCA
2002) (noting that bridge-the-gap alimony may be appropriate to “cushion the blow” for the recipient spouse adjusting to single life and
living on his or her own).
18
S. 61.08(5), F.S.
19
S. 61.08(6), F.S.
20
Id. See also Draulans v. Draulans, 69 So. 3d 401 (Fla. 2d DCA 2011).
21
Frye v. Frye, 385 So. 2d 1383 (Fla. 2d DCA 1980).
22
Short v. Short, 747 So. 2d 411 (Fla. 5th DCA 1999). STORAGE NAME: h1395a.CIV PAGE: 4
DATE: 1/28/2022
Durational alimony was codified by the legislature in 2010.
23
Durational alimony may be awarded
following a short-term marriage or moderate-term marriage.
24
Durational alimony may also be
appropriate following a long-term marriage if the court determines there is not a need for ongoing
support on a permanent basis.
25
The length of an award of durational alimony may not exceed the
length of the marriage.
26
Unlike other forms of alimony, the length of the award of durational alimony is
not modifiable once it has been ordered; however, the amount is modifiable based upon a substantial
change in circumstances.
Permanent Alimony
Permanent alimony may only be awarded when no other form of alimony is appropriate or reasonable.
The court’s order must include an express finding that no other form of alimony is fair and reasonable
under the circumstances of the parties.
27
Final judgments that do not include such specific findings are
subject to reversal.
28
Permanent alimony is based upon maintaining the needs and necessities of life
for a former spouse as he or she was accustomed to and was established during the marriage.
29
However, such award may not leave the obligor with significantly less net income than the net income
of the obligee.
30
Each type of alimony has a defined purpose, duration, and requirement for modification or termination,
as illustrated below:
23
Ch. 2010-99, Laws of Fla.
24
S. 61.08(7), F.S.
25
Id.
26
Id.
27
S. 61.08(8), F.S.
28
Julia v. Julia, 263 So. 3d 795 (Fla. 2d DCA 2019).
29
Jordan v. Jordan, 199 So. 3d 343 (Fla. 4th DCA 2016).
30
S. 61.08(9), F.S. STORAGE NAME: h1395a.CIV PAGE: 5
DATE: 1/28/2022
Type Purpose Duration
Modification/Terminati
on
Automatic
Terminatio
n
Temporary
(Pendente-
Lite)
S. 61.071, F.S.
A reasonable sum awarded after
initiation of DOM proceedings for
support during the pending
litigation.
Only during the
pending DOM
litigation.
Good cause. Final
Judgment in
DOM action
(including
appeals).
Bridge-the-
Gap
31
S. 61.08(5),
F.S.
To provide transitional assistance to
a party who must adjust their life
from married to single.
May not exceed 2
years.
Not modifiable in amount
or duration.
Remarriage
of recipient or
death of
either party.
Rehabilitative
S. 61.08(6)(a),
F.S.
To assist in establishing the
capacity for self-support through:
Redevelopment of previous
skills or credentials; or
Education, training, or work
experience to develop
appropriate employment skills
or credentials.
32
Requires a
specific, defined
rehabilitative plan;
duration varies
depending on
circumstances.
Substantial change in
circumstances; non-
compliance with
rehabilitation plan; or
completion of rehabilitation
plan.
Death of
either party.
Durational
S. 61.08(7),
F.S.
Awarded when permanent alimony
is not appropriate to assist with
economic assistance for a set
period of time following a marriage
of short or moderate duration.
33
May not exceed
the duration of the
marriage; duration
varies.
Amount: Substantial
change in
circumstances.
Duration: Exceptional
circumstances.
Remarriage
or recipient or
death of
either party.
Permanent
S. 61.08(8),
F.S.
To provide for needs and
necessities of life as established
during marriage for a party lacking
financial ability to meet such needs
on his/her own following a:
Long duration marriage;
Moderate duration marriage, if
appropriate considering
enumerated factors;
34
or
Short duration marriage, in
exceptional circumstances.
35
Perpetual (unless
modified or
terminated)
Substantial change in
circumstances, including
the existence of a
recipient’s supportive
relationship.
36
Remarriage
of recipient or
death of
either party.
Effect of Proposed Changes
Length of the Marriage
For the purposes of determining alimony, CS/HB 1395 changes the current presumptions relating to the
duration of a marriage. CS/HB 1395 specifies that a:
Short-term marriage is a marriage of less than 10 years (previously less than 7).
Moderate-term marriage is a marriage of 10 years or more but less than 20 years (previously 7-
17 years).
Long-term marriage is a marriage of 20 years or more (previously 17 or more).
Definitions
31
See Murray v. Murray, 374 So. 2d 622, 624 (Fla. 4th DCA 1979) ("[P]roof would justify a brief period of alimony sufficient to allow the
wife to ‘bridge’ the gap between the high standard of living enjoyed during the brief marriage and the more modest standard that the
wife can provide for herself").
32
Canakaris, 382 So. 2d at 1202.
33
S. 61.08(4), F.S.
34
S. 61.08(2), F.S., lists these factors.
35
A permanent alimony award is generally inappropriate in a short-term marriage unless DOM created a genuine inequity. Segall v.
Segall, 708 So. 2d 983 (Fla. 4th DCA 1998).
36
S. 61.14(1)(b), F.S. STORAGE NAME: h1395a.CIV PAGE: 6
DATE: 1/28/2022
CS/HB 1395 provides the following statutory definitions:
“Active Gross Income” means salary or wages, bonuses, commissions, allowances, overtime,
tip, and other similar payments, and business income from sources such as self-employment,
partnerships, corporations, and independent contracts. The definition clarifies that “business
income” means gross receipts minus ordinary expenses required to produce income and
requires business income be “actively earned” and not simply “passive income.”
“Alimony” means a court-ordered or voluntary payment of support by one spouse to the other
spouse. Alimony includes any voluntary payment made after an order for maintenance, spousal
support, temporary support, or separate support when the payment is not intended for the
benefit of a child in common to the parties.
“Gross Income” means income as determined in accordance with s. 61.30(2), F.S. Gross
income includes, but is not limited to:
o Salary or wages.
o Bonuses, commissions, allowances, overtime, tips, and other similar payments.
o Business income from sources such as self-employment, partnership, close
corporations, and independent contracts.
o Disability benefits.
o Workers’ compensation benefits and settlements.
o Reemployment assistance or unemployment compensation.
o Pension, retirement, or annuity payments.
o Social security benefits.
37
o Spousal support received from a previous marriage or court ordered in the marriage
present before the court.
o Interest and dividends.
o Rental income.
o Income from royalties, trusts, or estates.
o Reimbursed expenses or in-kind payments to the extent that they reduce living
expenses.
o Gains derived from dealings in property, unless the gain is nonrecurring.
“Income” is amended to clarify that distributions from trusts are considered income for the
purposes of alimony.
“Net income” means income that is determined by subtracting allowable deductions from gross
income. “Allowable deductions” includes:
o Federal, state, or local income tax deductions, adjusted for actual filing status and
allowable dependents and income tax liabilities;
o Federal insurance contributions or self-employment tax;
o Mandatory union dues;
o Health insurance payments, excluding payments for coverage of a minor child;
o Court-ordered support for other children which is actually paid; and
o Spousal support paid pursuant to a court order from a previous marriage.
38
Types of Alimony
The bill eliminates the ability to award permanent alimony. As such, the available forms of alimony
under the bill include bridge-the-gap, rehabilitative, or durational alimony, or a combination thereof. The
court may award a combination of types of alimony only to provide greater economic assistance to the
obligee in order to achieve rehabilitation. In such case, the court must make written findings.
The bill prohibits a rehabilitative alimony award from exceeding five years in length or the limitations of
durational alimony, whichever period is shorter. The bill further provides for the termination of a
rehabilitative alimony award upon the completion of the obligee’s rehabilitation plan before the length of
the award expires.
37
The bill prohibits the imputation of social security retirement benefits to the obligor unless those benefits are actually being paid.
38
The allowable deductions are comparable to the deductions used by the Department of Revenue in calculating a parent’s child
support obligation. STORAGE NAME: h1395a.CIV PAGE: 7
DATE: 1/28/2022
The bill prohibits an award of durational alimony in a marriage of three years or less. For marriages
longer than 3 years, an award of durational alimony may not exceed:
50% of the duration of the marriage, for a marriage between 3 to 10 years in duration.
60% of the duration of the marriage, for a marriage between 10 to 20 years in duration.
75% of the duration of the marriage, for a marriage lasting 20 years or more.
The length of the marriage is the date of marriage until the date the petition for DOM was filed. The bill
permits durational alimony to be awarded only upon written findings that another type of alimony or
combination of alimony is not appropriate. However, a court may extend durational alimony past the
outlined limits if the party seeking alimony (recipient):
Is either permanently mentally or physically disabled and unable to provide for his or her own
support;or
Is the full-time, in-home caregiver to a totally and permanently disabled child common to the
parties.
In the above scenarios, the court has the authority to extend durational alimony until the death of the
subject child or until the court determines there is no longer a need for alimony.
The bill provides that the amount of a durational alimony award shall be the obligee or recipient
spouse’s reasonable need, or 35% of the difference between the parties’ net incomes, whichever is
less.
Life Insurance
The bill clarifies that an obligee may purchase or maintain a life insurance policy on the obligor’s life,
when necessary to secure or protect an alimony award. If such life insurance is obtained, the obligor
must cooperate in the process of procuring the issuance and underwriting of the policy, including
complying with any necessary medical evaluations and documentation.
Determination of an Initial Alimony Award
Background
The court must determine each party’s need and ability to pay alimony before the court may order an
award of alimony.
39
40
Once the respective need and ability to pay alimony have been established, the
court must consider the following factors, in determining an alimony award:
The standard of living established during the marriage.
o However, the award may not be so high as to cause the obligor spouse to be unable to
meet his or her own needs,
41
and an alimony award that is over 50 percent of the
obligor spouse’s income is considered too high.
42
The duration of the marriage.
43
The age and the physical and emotional condition of each party.
The financial resources of each party, including the nonmarital and the marital assets and
liabilities distributed to each.
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.
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.
39
S. 61.08(2), F.S.
40
Florida statute does not specifically provide factors to be considered in determining a party’s need or ability to pay alimony. The Court
in Canakaris specified that a court should consider the parties’ earning ability, age, health, education, duration of marriage, standard of
living during the marriage, and the value of the parties’ estates.
41
Rashotsky v. Rashotsky, 782 So. 2d 542 (Fla. 3d DCA 2001).
42
O’Conner v. O’Conner, 782 So. 2d 502 (Fla. 2d DCA 2001).
43
See s. 61.08(4), F.S. STORAGE NAME: h1395a.CIV PAGE: 8
DATE: 1/28/2022
The responsibilities each party will have regarding any minor children they have in common.
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.
All sources of income
44
available to either party, including income available to either party
through investments of any asset held by that party.
o Income may be imputed to a voluntarily unemployed or underemployed spouse,
whether the spouse is an obligee or obligor.
45
Any other factor necessary to do equity and justice between the parties.
While the statutory guidelines provide the framework within which the court may exercise its discretion
to determine the type, amount, and duration of an alimony award, there are no bright line rules to
determine whether alimony is appropriate in a particular case, and if so, which type of alimony. No
single factor justifies an alimony award; rather, all factors must be considered as a whole, and the court
may analyze the entire marital situation to make an alimony award.
Adultery
In addition to the enumerated factors, s. 61.08(2)(c), F.S., specifically provides that the court may also
consider the adultery of either spouse and the circumstances surrounding the adultery. The spouse
seeking to prove adultery has the burden of proof.
46
Effect of Proposed Changes
Alimony Factors
Under the bill, a court may consider any other factor necessary in a dissolution proceeding so long as
such factor is specifically identified in the award with findings of fact justifying the application of that
factor.
Standard of Living During the Marriage and Presumption
In determining whether to award alimony or what amount of alimony to award, the court must consider
the standard of living established during the marriage, including the needs and necessities of life for
each party after the dissolution of marriage, taking into consideration the presumption
47
that both
parties will have a lower standard of living after the dissolution than was enjoyed during the marriage.
Adultery
The bill removes all references to adultery in s. 61.08, F.S., relating to the determination of an alimony
award.
Supportive Relationship
The court may consider whether the party seeking alimony is presently or was in a supportive
relationship with another person (not related by blood or marriage) at any point during the 180 days
44
This is defined broadly as "any form of payment to an individual, regardless of source, including, but not limited to: wages, salary,
commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and
retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal
or state government, or any unit of local government. United States Department of Veterans Affairs disability benefits and
reemployment assistance or unemployment compensation, as defined in chapter 443, are excluded from this definition of income
except for purposes of establishing an amount of support." S. 61.046(8), F.S.
45
See Keyser v. Keyser, 204 So. 3d 159 (Fla. 1st DCA 2016); Lostaglio v. Lostaglio, 199 So. 3d 560 (Fla. 5th DCA 2016); Kovar v.
Kovar, 648 So. 2d 177 (Fla. 4th DCA 2003); Rojas v. Rojas, 656 So. 2d 563 (Fla. 3d DCA 1995).
46
Engebretsen v. Engebretsen, 151 Fla. 372, 11 So. 2d 322 (1942).
47
This presumption may be overcome by a preponderance of the evidence. STORAGE NAME: h1395a.CIV PAGE: 9
DATE: 1/28/2022
prior to the date the petition for dissolution was filed. In considering such a supportive relationship, the
court shall consider all relevant factors relating to the nature and extent of the alleged relationship. In
such a case, the party against whom alimony is sought (obligor or payor) has the burden to prove, by a
preponderance of the evidence, that such a supportive relationship exists or existed and that the court
should deny or reduce the award of alimony. If the obligor proves the existence of a supportive
relationship by a preponderance of the evidence, the burden shifts to the party seeking alimony
(recipient) to disprove, by a preponderance of the evidence, the existence of a supportive relationship
which warrants a reduction or denial of alimony. The court must make written findings of fact in making
its determination, including, but not limited to:
The extent to which the party seeking alimony and the other person held themselves out as a
couple;
Whether the party seeking alimony and the other person resided together and for how long;
The extent to which the members of the couple have pooled their assets or demonstrate
financial interdependence;
The extent to which the party seeking alimony or the other person has financially or
economically supported the other;
The financial or economic services performed by the party seeking alimony to the other person,
or visa versa;
The extent to which the party seeking alimony or the other person performed services for the
other’s business or employer;
Whether the party seeking alimony and the other person have acquired assets or real property
together;
Whether the party seeking alimony and the other person have provided support to each other’s
children; and
Whether the party seeking alimony and the other person are engaged.
A conjugal relationship need not be proven for the court to determine that a supportive
relationship exists.
Calculation of an Alimony Award
Under the bill, alimony may not be awarded to a party who has a monthly net income that is equal to or
greater than the other party’s monthly net income. Further, social security benefits may not be imputed
to the obligor unless such benefits are actually being paid out.
When making a determination of alimony, the court must consider any payments of alimony made by
the obligor during the period between when the petition was filed and the final order making the alimony
determination is entered. The court must apply any such payments when making a determination of the
amount and length of a rehabilitative or durational alimony award.
Modification or Termination of an Alimony Award
Background
A former spouse may petition the court to modify or terminate the terms of an alimony award only upon
a showing of a substantial change in circumstances that:
48
Was not contemplated at the time the final judgment of DOM was issued;
49
and
Is sufficient, material, involuntary, and permanent in nature.
50
48
S. 61.14(1), F.S.
49
Chastain v. Chastain, 73 So. 2d 66 (Fla. 1954
50
Dykes v. Dykes, 712 So. 2d 453 (Fla. 1st DCA 1998); Hanskat v. Hanskat, 716 So. 2d 347 (Fla. 1st DCA 1998). STORAGE NAME: h1395a.CIV PAGE: 10
DATE: 1/28/2022
Retirement
The impact of retirement on alimony obligations is not specifically addressed in statute. Rather, the
Supreme Court of Florida has addressed the issue in Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992). The
Pimm Court held that if a final judgment does not address the impact of retirement on an alimony
award, the court may consider whether the retirement constitutes a substantial change in
circumstances which warrants a modification or termination of alimony. As such, retirement may be a
factor to be considered at the court’s discretion on a case-by-case basis.
Effect of Proposed Changes
Under the bill, the court may reduce or terminate an existing award of alimony upon specific findings
that since the finalization of the dissolution, a supportive relationship exists or existed between the
recipient party and another person at any time during the 180 days before the filing of a petition for
modification of alimony. The court must make written findings of fact relating to the existence of the
alleged supportive relationship in the same manner that is required during an initial determination of
alimony.
An obligor’s subsequent remarriage or cohabitation does not constitute a basis for a modification of
alimony by either party. Further, a party receiving alimony may not seek modification to increase
alimony based on the income and assets of the obligor’s new spouse. Likewise, an obligor may not
seek modification of alimony to reduce the amount payed to the former spouse based on the obligor’s
financial interdependence with the new spouse.
Retirement
Under the bill, if an obligor reaches full retirement age as determined by the U.S. Social Security
Administration, or the customary retirement age for his or her specific profession before the end of the
durational period ordered by the court, the award of durational alimony will end on the obligor’s
retirement date, the if the obligor actually retires. If the obligor chooses not to retire and continues to
work and earn an active gross income of more than 50% of the obligor’s average active gross income
for the three years prior to attaining retirement age, the court may extend an award of alimony until the
previously ordered durational limits have been satisfied, the obligor actually retires, or the obligor’s
active income falls below the 50% threshold.
If the obligor has met the requirements for retirement under s. 61.14(12), F.S., prior to the filing date of
the petition for dissolution, he or she may not be ordered to pay bridge-the-gap, rehabilitative, or
durational alimony unless the court determines that the party seeking alimony has not reached the age
to qualify for social security retirement benefits and:
As a result of the dissolution, obligee has an annual income at or below 130% of the federal
poverty level for individuals according to the most recent report by the U.S. Census Bureau;
The obligee is the full-time, in-home caregiver to a permanently mentally or physically disabled
child of the parties; or
The obligee is permanently mentally or physically disabled and unable to provide for his or her
full or partial support.
51
In anticipation of retirement, an obligor may file a “Notice of Retirement and Intent to Terminate
Alimony” with the court and serve it on the obligee up to 12 months before seeking to reduce or
terminate alimony. The obligee has 20 days after the date of service to respond to the notice and
request that the court find such reduction or termination of alimony invalid. A court may find the
termination of alimony due to retirement of the obligor invalid if:
51
If the party seeking alimony alleges that a disability has impaired his or her ability to earn the income imputed by the court, he or she
must qualify for benefits under the Social Security Disability Insurance program or must demonstrate that the alleged disability meets
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The obligee’s income and assets would put him or her at or below 130% of the federal poverty
level for individuals;
The terms of the marital settlement agreement between the parties do no allow for such
modification or termination;
The obligee is the full-time, in-home caregiver to a permanently mentally or physically disabled
child of the parties; or
The obligee is permanently mentally or physically disabled and unable to provide for his or her
own support.
If the court finds that any of the above factors apply, the court must consider the following factors and
make specific written findings regarding reducing the amount and duration of an existing alimony
award:
The length of the marriage;
The financial resources of the ogligee;
The sources of income available to the obligee and access to those assets without penalty;
The effort and sacrifices of time and leisure necessary for the obligor to continue to provide
alimony, taking into consideration the presumption that the obligor has a right to retire when he
or she reaches full retirement age; and
The terms governing modification or termination of alimony between the parties as established
in the marital settlement agreement.
If the court does not find the request to terminate alimony to be invalid, and the obligor has reached the
age of 65, the alimony award must decrease by 25% per year after age 65.
If an obligor chooses to retire before full retirement age but at an age that is customary for his or her
profession, the court may terminate an alimony award if it determines that such retirement is
reasonable. In determining the reasonableness of the obligor’s retirement, the court shall consider the
obligor’s age and health, motivation for retirement, customary retirement age for that profession, and
the impact such retirement would have on the obligee.
Additionally, any amount of social security or disability benefits or retirement payments received by an
obligee after an initial award and determination of alimony constitutes a change in circumstances for
which an obligor may seek a modification. Further, the bill provides that an agreement or court order
allowing for modification or termination of an alimony award based upon a specific event or threshold is
considered to be expressly modifiable or eligible for termination after that specified condition is met.
Time-Sharing of a Minor Child
Background
Florida courts have consistently ruled that a parent’s desire and right to the companionship, care,
custody, and management of his or her children is an important interest that warrants deference and,
absent a powerful countervailing interest, protection. Although the right to integrity of the family is
among the most fundamental rights, when married parents divorce or separate, the parents’ rights are
subject to the overriding concern for the ultimate welfare or best interests of their children.
Time-Sharing
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Section 61.13, F.S., provides guidelines to assist courts in determining matters related to parenting
52
and time-sharing
53
of minor children in actions under ch. 61, F.S., in accordance with the best interests
of the child while balancing the rights of parents. As a threshold consideration, the Legislature has
declared that:
54
It is the public policy of this state that each minor child has frequent and continuing contact
with both parents after the parents separate or the marriage of the parties is dissolved and
to encourage parents to share the rights and responsibilities, and joys, of childrearing.
There is no presumption for or against the father or mother of the child or for or against
any specific time-sharing schedule when creating or modifying the parenting plan of the
child.
Therefore, current law does not provide a presumption in favor of a specific time-sharing schedule, and
the court sets a time-sharing schedule when the parties are unable to agree. In establishing time-
sharing, the court must consider the best interests of the child
55
and evaluate all factors affecting the
welfare and interests of the child and the circumstances of the family, including, but not limited to the:
Demonstrated capacity and disposition of each parent to facilitate and encourage a continuing
parent-child relationship, honor the time-sharing schedule, and accommodate necessary
changes.
Anticipated division of parental responsibilities after the litigation, including the extent to which
parental responsibilities will be delegated to third parties.
Demonstrated capacity and disposition of each parent to determine, consider, and act upon the
needs of the child.
Length of time the child has lived in a stable environment and the desirability of maintaining
continuity.
Geographic viability of the parenting plan, with special attention paid to the needs of school-age
children and the amount of time to be spent traveling to effectuate the parenting plan.
Mental health, physical health, and moral fitness of the parents.
Home, school, and community record of the child.
Reasonable preference of the child.
Demonstrated knowledge, capacity, and disposition of each parent to be informed of the
circumstances of the minor child, including, the child’s friends, teachers, and daily activities.
Demonstrated capacity and disposition of each parent to:
o Provide a consistent routine; and
o Communicate with and keep the other parent informed of issues and activities regarding
the minor child, and the willingness of each parent to adopt a unified front on all major
issues when dealing with the child.
Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child
neglect, or that either parent has ever knowingly provided false information about such matters.
Particular parenting tasks customarily performed by each parent, including the extent to which
parenting responsibilities were undertaken by third parties.
Demonstrated capacity and disposition of each parent to participate and be involved in the
child’s school and extracurricular activities.
Demonstrated capacity and disposition of each parent to maintain an environment for the child
which is free from substance abuse.
Capacity and disposition of each parent to protect the child from the ongoing litigation regarding
child custody.
Developmental stages and needs of the child and the demonstrated capacity and disposition of
each parent to meet the child’s developmental needs.
Time-sharing and Child Support
52
Parenting or parental responsibility refers to the responsibility and right to make important decisions about the child’s welfare, such as
education and medical care after the parents separate.
53
Time-sharing refers to the time, including overnights and holidays, which the child spends with each parent. S. 61.046(23), F.S.
54
S. 61.13(2)(c)1., F.S.
55
S. 61.13(2)(c), F.S. STORAGE NAME: h1395a.CIV PAGE: 13
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A time-sharing order entered by a court may impact the child support obligation of the parents. In a
chapter 61, F.S., proceeding, the court may order either or both parents to pay child support in
accordance with the child support guidelines provided in s. 61.30, F.S. These guidelines use a
mathematical formula to develop the basic child support obligation of each parent. The court may not
deviate from the basic child support obligation provided under the guidelines by more than five percent
when establishing the child support award except in very limited circumstances, such as when a court
orders substantial time-sharing.
Section 61.30(11)(b), F.S., provides that a court must adjust the basic child support obligation if the
parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement agreed upon by
the parties provides that a child spend a substantial amount of time with each parent.
56
The adjustment
of a child support award based on substantial time-sharing usually results in a reduction in the child
support payment.
57
Failure to regularly exercise a substantial time-sharing schedule that caused the
adjustment of child support pursuant to s. 61.30(11)(b), F.S., constitutes grounds to modify the adjusted
child support award, and the modification is retroactive to the date of non-compliance with the time-
sharing schedule.
58
Current law provides that there is no presumption for or against either parent of a child or for any
specific time-sharing schedule when the court is creating or modifying a parenting plan.
Effect of Proposed Changes
CS/HB 1395 amends s. 61.13, F.S., to create a presumption that equal time-sharing (commonly
referred to as "50/50 time-sharing") is in the best interests of a minor child common to both parties,
unless otherwise agreed to by the parties.
Separate Adjudication of Issues (Bifurcation)
Background
Bifurcation is a split procedure in which the court grants a dissolution of marriage and reserves
jurisdiction regarding property settlement, debts, alimony and child support. While bifurcation is
permitted in limited circumstances, current case law discourages the use of bifurcation. Specifically, in
Claughton v. Claughton, the Florida Supreme Court explained that "trial judges should avoid this split
procedure . . . . [S]plit procedure should be used only when it is clearly necessary for the best interests
of the parties or their children. The convenience of one of the parties for an early remarriage does not
justify its use.”
59
Under current law, a final judgment of DOM may not be entered until at least twenty days from
the date the petition was filed.
Effect of Proposed Changes
The bill amends s. 61.19, F.S., to allow the court, upon request of either party, to grant a final judgment
of dissolution with a reservation of jurisdiction on all outstanding substantive issues when the case has
been pending for more 2 years. Before entering a final order of dissolution, the court must enter
temporary orders necessary to protect the parties and their children until the issues can be permanently
adjudicated by the court. This provision of the bill applies to all petitions for dissolution filed on or after
July 1, 2022.
Effective Date and Application
56
A substantial amount of time means exercising time-sharing at least 20 percent of overnights per year. S. 61.30(11)(b)8., F.S.
57
The court may deviate from the child support amount calculated under the required “substantial time-sharing” adjustment based upon
a number of factors, including the “likelihood that either parent will actually exercise the time-sharing schedule.” S. 61.30(11)(b)7., F.S.
58
S. 61.30(11)(c), F.S.
59
Claughton v. Claughton, 393 So. 2d 1061, 1062 (Fla. 1981). STORAGE NAME: h1395a.CIV PAGE: 14
DATE: 1/28/2022
The bill provides an effective date of July 1, 2022, and certain provisions apply in a specific manner, as
follows:
Section 2 of the bill, which relates to alimony, applies to all petitions for dissolution of marriage
that have not been adjudicated before July 1, 2022, and to all petitions for dissolution filed on or
after July 1, 2022.
Section 5 of the bill, which allows a court to bifurcate a DOM proceeding to grant a divorce,
applies to all petitions for dissolution of marriage filed on or after July 1, 2022.
B. SECTION DIRECTORY:
Section 1: Amends s. 61.046, F.S., relating to definitions.
Section 2: Amends s. 61.08, F.S., relating to alimony.
Section 3: Amends s. 61.13(2)(c), F.S., relating to support of children; parenting and time-sharing;
powers of court.
Section 4: Amends s. 61.14, F.S., relating to enforcement and modification of support, maintenance, or
alimony agreements or orders.
Section 5: Amends s. 61.19, F.S., relating to entry of judgment of dissolution of marriage; delay period;
separate adjudication of issues.
Section 6: Provides that the court shall apply this act to any action pending on or after July 1, 2022.
Section 7: Provides an effective date of July 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a direct economic impact on the private sector relating to the amount of alimony and
duration of an alimony award that a spouse may receive, although the particular economic impacts are
indeterminate.
D. FISCAL COMMENTS:
None.
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III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
None.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On January 27, 2022, the Civil Justice and Property Rights Subcommittee adopted a strike-all amendment
and reported the bill favorably as a committee substitute. The committee substitute:
Clarified that the definition of “active gross income” includes business income.
Clarified that only distributions from trusts, rather than entire trusts, are considered “income.”
Eliminated references to combat-related benefits from the definition of “income.”
Removed references to other definitions which remain unchanged under both the House and
Senate bills.
Removed the prioritization of bridge-the-gap alimony and rehabilitative alimony over durational
alimony.
Removed the ability for a court to grant an award of permanent alimony upon the agreement of
both parties.
Removed references to the adultery of a spouse as a basis for the court’s denial of an alimony
request.
Capped the length of a rehabilitative alimony award to 5 years.
Removed references under alimony to a party that is “medically needy” and replaced those
references with “being mentally or physically disabled and unable to provide for own support.”
Modified the limits on the amount of an award of durational alimony to be the obligee’s
reasonable need or 35% of the difference between the parties’ net incomes.
Included an automatic ramp-down schedule for reduction-to-termination based on retirement if
the court does not make specific findings otherwise.
Clarified the notice requirements for and factors related to termination of alimony based on
retirement for pending determinations of alimony and for modifications of alimony already being
paid.
Extended the period after which bifurcation may be entered from 365 days to 2 years.
Provided that bill applies to any action pending as of July 1, 2022.
This analysis is drafted to the committee substitute as passed by the Civil Justice and Property Rights
Subcommittee.