by Luis E. Insignares, Esq.
In 2010 the Florida Legislature passed “Laws of Florida, Chapter 2010-199,” sponsored by Miami Republican Representative Anitere Flores. For the first time, the legislature codified Florida’s common-law three tier system as to the length of a marriage and its relationship to the propriety of awarding so-called “permanent alimony.” I initially place the term in quotes since, of course, permanent alimony has always been subject to subsequent judicial modification, based upon a showing that the payor no longer has the ability to pay, the payee no longer has need of support, or both. Thus, it has in fact always been a bit of a misnomer.
Florida courts had already devised a system to help determine when permanent alimony could appropriately be awarded. Under the case law, for short-term marriages, the presumption was against an award of permanent alimony. For mid-length marriages in what was often termed the “gray area,” there was no presumption, either in favor or against. For longterm marriages, the presumption was in favor of awarding permanent alimony, if the payee spouse could show her or his need, and the ability of the payor spouse to pay support. These presumptions were expressly written into the alimony statute, as well as more specific provisions on rehabilitative alimony, and a totally new option called “durational alimony.”
In my opinion, the case-made three-tier rule worked in practice, and generally yielded equitable results. Where there are children of a marriage, it is quite commonplace for one spouse to limit his or her employment or career advancement, particularly during the children’s early years, and the economic momentum lost even if only for five or 10 years can often prove difficult or impossible to regain. And if there were no children or neither spouse otherwise limited his or her employment or career, then that spouse might not be able to show any “need” for post-divorce support anyhow.
So, why tinker with a system that was already working? One answer is that the 2010 legislation was the first salvo by an “alimony reform” movement which considers Florida’s inclusion of any permanent alimony in its array of divorce remedies to be an anachronism based on the traditional “stayat- home-mom” paradigm seen less and less in the real world of two-income families. These same reformers were previously often referred to as those agitating for “men’s rights.”
This latter appellation, however, overlooks the obvious fact that Florida law, whether statutory or court-made, is genderneutral and speaks only in terms of payor and payee spouses, so that any “advantage” granted to a less financially able spouse is in fact just as available to men as it is to women, if that should prove to be the applicable factual scenario. Seen from a feminist perspective, the current alimony reform movement is nothing less than an attempt not at “fairness,” but at the perpetuation of a patriarchy in which many women face a “lose-lose” Catch-22: if they elect the traditional stay-at-home role, their parenting and homemaking labor will be economically undervalued, while if they stay in the outside-the-home workforce, they will still often face “glass ceilings” and otherwise not be paid the same for the same work done by their male counterparts.
One good thing that the 2010 legislation did, (no matter one’s political leanings), was to add more certainty to the three-tier marriage duration system. As is typical of judge-made law, the boundaries between the three “tiers” under the case law were not exact. The 2010 legislation added to the alimony statute (Section 61.08) very specific cut-offs for the three tiers. Under the 2010 amendments, “short-term” marriages were “less than seven years,” “moderate-term” marriages “greater than seven years but less than seventeen years,” and “long-term” marriages have “a duration of 17 years or greater.” The measurement is from the date of the marriage to the date of filing. Overlooking the thorny question of a divorce petition filed on a couple’s seventh anniversary, the inclusion of exact cut-offs provides Florida husbands and wives, and their attorneys, guidance as to when filing for divorce will be most appropriate, as well as possible assistance in drafting prenuptial agreements, which sometimes reward or penalize spouses based upon the length of their marriage.
I mentioned that the 2010 changes were the “opening salvo” from the alimony reform movement. In my next column we’ll look at the more extensive statutory changes made in 2011, and in future installments, we’ll look at the failed 2013 amendments, vetoed by Governor Scott, and more that’s currently in the offing. RG