Florida Alimony Reform

Consideration of Adultery in a No-Fault State and Elimination of Permanent Alimony (effective in Florida as of July 01, 2023)

Florida has eliminated permanent alimony. This article discusses this change in the law, including the new alimony structure, consideration, burden of proof, and fact that the court now is allowed to consider adultery in determination of support.

More than 200 laws passed in the recent 2023 Florida legislative session including: HB[1] 543, which allows Floridians to carry guns without concealed weapons licenses;[2] HB 1305, which sets requirements for the Florida Department of Transportation to conduct inspections of the Walt Disney World monorail system;[3] and, most applicable to financial experts who work in divorce matters in the state of Florida, a complete overhaul to Florida’s alimony structure including consideration, burden of proof, and elimination of permanent alimony. Besides the elimination of permanent alimony, one of the more discussed elements of change to Florida’s new alimony restructuring is the fact that the court now is allowed to consider adultery in determination of support.

Background Leading up to Alimony Reform

For a decade there have been murmurings of the “imminent” seminal changes to the Florida laws governing alimony and on June 30, 2023, Governor DeSantis approved many of these changes to Florida Statute 61.08 making them effective to any final judgement entered on or after July 01, 2023. Working in litigation support as a MAFF and/or CVA mandates the basic knowledge, at a minimum, of how applicable laws within a case jurisdiction impact settlement structure considerations and allowances. SB[4] 1416 is the fourth bill that aimed to eliminate permanent alimony. Governor DeSantis and former Governor Scott collectively vetoed three previous senate bills, all of which included the permanent elimination of alimony, among other support-related changes to marital dissolution matters. The following is a summarized conveyance of some of the key changes made to Florida Statute 61.08 Dissolution of Marriage; Support; Time-Sharing (F.S. 61.08) (refer to the link in the footnote below for the text of F.S. 61.08 with tracked changes)[5] through Florida Senate Bill 1416 (SB 1416).[6]

The Court’s Consideration of Adultery

The 2023 Florida alimony law overhaul allows judges to reduce or terminate alimony, support, or maintenance payments after considering several factors, such as:

• “The age and health” of the person who makes payments
• The customary retirement age of that person’s occupation
• “The economic impact” a reduction in alimony would have on the recipient of the payments
• The adultery of either spouse and any resulting economic impact
• The “motivation for retirement and likelihood of returning to work” for the person making the payments
• The existence of “a supportive relationship” between the ex-spouse receiving payments and another, non-related party. The burden for the ex-spouse making payments to prove that a supportive relationship exists has been removed.

Additionally, the revised bill removes tax consequences and sources of income such as “investments of any asset” from consideration by the court.

Some of the key changes to the General Provisions section of F.S. 61.08 include changes to the role of adultery, and the consideration thereof, in a marital dissolution legal matter. Historically, the inclusion of adultery for Florida divorce matters was as follows:

Absent a showing of a related depletion of marital assets … adulterous misconduct is not a valid reason … deny the adulterous spouse alimony.[7]

This meant that the only way to “punish” a badly behaving spouse was through the dissipation of assets; in the past, Florida courts could not award an unequal distribution of assets because of a spouse’s philandering ways. This aligns with the fact that Florida is a “true no-fault” state, which means that the parties involved do not have the option to cast blame and can only file on no-fault grounds.[8]^,[9] All 50 states allow for no-fault grounds divorces (if both parties agree), but only 17 states and Washington D.C. are “true no-fault” states:[10]

• Arizona
• California
• Colorado
• Florida
• Hawaii
• Illinois
• Indiana
• Iowa
• Kentucky
• Michigan
• Minnesota
• Missouri
• Montana
• Nebraska
• Oregon
• Tennessee
• Washington
• Washington District of Columbia
• Wisconsin

In a seeming acknowledgement of behavioral injustices to one or both spouses, and the potential corresponding effects upon a parties’ financial picture, the Florida Senate put forth the proposed, albeit vetoed, edifications to F.S. 61.08:

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)[11] supporting an award or denial of alimony.

The Florida Senate did not give up and continued to propose amendments through new senate bills to F.S. 61.08 as it pertains to the subject of adultery. The final approved, edification to the F.S. 61.08 is as follows:

The court may consider the adultery of either spouse and any resulting economic impact in determining the amount of alimony, if any, to be awarded. (b) The court shall make written findings of fact regarding the basis for awarding a form or any combination of forms of alimony, including the type of alimony and the length of time for which the alimony is awarded. The court may award a combination of forms of alimony or forms of payment, including lump sum payments, to provide greater economic assistance in order to allow the obligee to achieve self-support.

As an aside, the consideration of adultery in a no-fault state is an interesting, and seemingly contradictory, one which will be explored in an upcoming QuickRead article.[12]

What does this mean for valuation and forensic accounting experts working on divorce matters in the state of Florida? 

Historically, experts were often brought in to trace assets and provide the necessary proof to support a claim of dissipation. It was not sufficient for the spouse to simply note that the assets were squandered, disappeared, used to benefit a paramour, etc.; concrete support to such claims were necessary to effectuate change to the equitable distribution worksheet (i.e., the division of assets and liabilities in an equitable distribution state such as Florida). Since the Wife’s testimony that she had used most of this asset[13] for attorney’s fees and living expenses was unrebutted and the trial court made no finding of misconduct with respect to the Wife’s use of the funds, it was error to assign the full value of the depleted asset to the Wife as part of the plan of equitable distribution (Levy v. Levy, 900 So. 2d 737).[14] It is yet to be seen exactly how this revised consideration to the statute will affect the tasks of financial experts working on divorce matters in Florida, but it is safe to assume that the inclusion of the adultery verbiage means that the court scrutiny on such matters will be increased.  

Elimination of Permanent Alimony

Prior to July 2023, F.S. 61.08 (1) (a) read as follows:

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.

The revised forms of statutory alimony under 61.08(1)(a), F.S. (2023) now include:

• Temporary
• Bridge-the-gap
• Rehabilitative[15]
• Durational

Permanent alimony is no longer under the revised statute and temporary alimony is now included in F.S. 61.08(1)(a).[16] Governor DeSantis’ approval to eliminate permanent alimony came a year after he nixed a similar bill that also sought to eliminate permanent alimony and set up a formula for alimony amounts based on the length of marriage.[17]

Conclusion

Overall, the alimony revisions of F.S. 61.08 were agreed to with minimal pushback. In testament to this statement, Florida Family Fairness and The Florida Bar’s Family Law Section collectively are in acceptance of the changes discussed herein; whereas these two groups in years past were in great opposition with one another.[18] Florida Family Fairness Chairman Michael Buhler said in a statement, “Florida Family Fairness is pleased that the Florida Legislature and Governor DeSantis have passed a bill that ends permanent alimony and codifies in statute the right to retire for existing alimony payers. Anything that adds clarity and ends permanent alimony is a win for Florida families.” But not all were pleased with the overhaul, with First Wives Group representatives alerting the media of their concern for the financial health of elder women who rely on the support that permanent alimony allowed.[19] Yet, as a whole, Florida’s new alimony laws were received well and are expected to procure positive results with respect to the clearer guidelines on the quantification and consideration for elements of a divorce settlement. In the next segment of this article, we will further explore the ways in which the revised laws agreed to in S.B. 1416 (2023) are expected to assist financial experts, their clients, and client representation in arriving at support arrangements more succinctly and swiftly, as well as further dig into the seeming contradiction between “no-fault” states and the consideration of adultery in marital dissolution matters.

[1] House Bill.

[2] https://www.wtsp.com/article/news/regional/florida/florida-desantis-permitless-carry-gun-bill-law/67-7f9c3143-3e73-4811-8f1f-4548fdaa435a

[3] Perpetuating the tensions between Governor DeSantis and the Walt Disney Company.  

[4] Senate Bill.

[5] https://www.flsenate.gov/Session/Bill/2023/1416/BillText/er/PDF

[6] Anchor Business Valuations & Financial Services, LLC are not attorneys and the information in the article herein is not to be construed as legal advice. It is suggested to discuss all legal implications to any engagement in which you are working, at minimum consideration, with the client and the client’s counsel.

[7] Summary Bill Analysis, SB 1416 (2023).

[8] https://www.law.cornell.edu/wex/no-fault_divorce

[9] https://worldpopulationreview.com/state-rankings/no-fault-divorce-states; there may be exceptions to this, always seek appropriate counsel for any legal advice.

[10] https://en.wikipedia.org/wiki/No-fault_divorce

[11] Subsection (2) of F.S. 61.08 details the ways in which alimony can be structured.

[12] Specifically, from a historical standpoint and how it affects the roles as financial experts (if at all).

[13] During the pendency of the dissolution proceedings, the Wife received a lump-sum disability payment from Social Security in the amount of $27,000 of which $1,500 remained at the time of the final hearing.

[14] https://www.casemine.com/judgement/us/59147507add7b049343a9ae2

[15] Under new legislation, an award of rehabilitative alimony may not exceed five years.

[16] Historically, temporary alimony was not awardable under 61.08, but instead under 61.071 as “alimony pendente lite”.

[17] https://www.nbcmiami.com/news/local/desantis-signed-a-controversial-measure-that-will-overhaul-permanent-alimony-heres-what-to-know-about-the-bill/3064740/

[18] Ibid

[19] Ibid

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Trisch Garthoeffner, ABV, CVA, MAFF, EA, MAcc, has 20+ years of experience in providing business valuation and financial consulting services. She is an Accredited Business Valuator (ABV) through the AICPA, a Certified Valuation Analyst (CVA) and Master Analyst in Financial Forensics (MAFF) through the NACVA, an IRS representative (Enrolled Agent or EA), and a court certified expert witness. Additionally, She has her master’s in accounting with a concentration in business valuations (MAcc). In 2020, she was nominated as a NACVA Standards Board (SDB) member; in 2021, nominated vice-chair; in 2022, served as chair; and is a current Executive Advisory Board appointed advisor to the SDB. She is a past Florida State Chapter President for NACVA, a current member of the NACVA exam task force (providing teaching for the preparation of the CVA exam for valuation expert candidates nationwide), a board member and quarterly author for the QuickRead periodical, a past treasurer of the Florida Academy of Collaborative Professionals, and a past vice-president of the Southwest Florida Chapter of Collaborative Professionals and current member. In her spare time, she enjoys spending time with her daughter, antiquing, and fostering animals for the local Humane Society.

Ms. Garthoeffner can be contacted at (239) 919-3092 or by e-mail to trisch@anchorbvfs.com.