USA – FLORIDA Trends and Developments Contributed by: Elisha D. Roy and Carolyn D. Ware, Sasser, Cestero & Roy
Another interesting development to watch is the interplay between the new alimony statute and the changes to Florida Statute 61.14 regarding alimony modifications. Prior case law providing that retirement in itself is a substantial change to warrant a modification of alimony was codified in 2023. This means that a person who is retiring needs show no other change for a retirement to open the door to a modification. How will this work both in modification and initial awards? What if someone is already past retirement age when an initial divorce is filed? Does it preclude a less moneyed spouse from even seeking ali - mony? We know that, if a person retires and seeks a modification, the court can change the type of alimony awarded. In other words, if the recipient spouse was awarded permanent ali - mony, the payor retires and files a modification, then the court can change the alimony to anoth - er type of alimony, most likely durational. And now that the length of the award is changed, the court may also modify the amount. If the court changes the alimony type to durational, do the new guidelines apply, and, if so, is the length and amount based on the years of marriage or some other number? Because permanent ali - mony could have been awarded in a case up to July 2023, most modifications coming to the court will likely be seeking to modify a perma - nent alimony award. In many of those cases, it is entirely possible that a payor is seeking a modi - fication having already paid alimony for longer than the length of the actual marriage! Regard - less of the facts, an example helps illustrate the possible issues that could arise: A couple were married for 20 years and a spouse is awarded permanent alimony at an initial divorce in 2015. Then, in 2025, the paying spouse seeks a modi - fication due to legitimate retirement. If the court changes the alimony to durational, what would the duration be? Would it be 75% of the 20 years the couple were married? Or can the court pick
any duration? And what about amount of alimo - ny? Current guidelines say that alimony should not exceed the needs of the recipient spouse or 35% of the differential in their net incomes. What “need” are we looking at – at the time of the divorce or current at the time of the modifica - tion? The same goes for the couple’s incomes. Is the court looking at their incomes at the time of divorce or at their current incomes? This is particularly interesting when you consider that one of them may have been working and earn - ing a particularly high income but is now seeking a modification after retirement at a time when they have no income. It is expected that many of these issues will be hashed out in the appellate courts in Florida over the next few years. Parenting Modifications in Florida law as it pertains to chil - dren should be expected based upon changes to the State’s parenting statute (61.13), chang - es to the Parentage laws (most well known as paternity cases) and changes taking place in the US regarding rights for the LGBTQ+ community (rolling back numerous advances over the past decade, with more expected). With effect from 1 January 2023, Florida has a rebuttable equal timesharing presumption. This means that, for every case, initial petitions for timesharing or modifications to this, begin with the presumption that equal timesharing is in the minor child’s best interests. Notwithstanding the fact there is a tremendous amount of literature to the contrary, the adoption of this legislation is truly not a deviation from what was happening in practice in most of Florida prior to its adoption. While Florida ended the concept of a “tender years doctrine” – ie, that children should be with the mother most of the time – in the late 1960s, in the early 2000s Florida judges had already start - ed at a place where both parents should have
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