February 22, 2016
Governor Rick Scott
State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001
State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001
Dear Governor Scott:
I am writing to urge you to veto SB668/HB455 and to
establish a task force to study options for alimony reform in Florida. For the sake of the many Florida mothers and
grandmothers who have invested in their families rather than a career or job,
please do not sign this bill. I have
spent almost 25 years studying alimony.
(See my book: The Marriage Buyout; The Troubled Trajectory
of U.S. Alimony Law (NYU Press 2014)).
If I have learned anything, it is that alimony is complex. Reform can have unintended consequences and
so should be the product of a careful, deliberative effort to understand and
improve the law rather than a one-sided push to protect alimony payors by
kicking recipients off the “alimony gravy train.” There are two sides to every story; SB668/HB455 hears only one side. Please veto this bill.
SB 668 is full of problems, but I’ll limit this letter
to three critical points:
1. Why
alimony matters. Alimony has an
awful reputation, partly because its roots lie in old notions of wives as
inevitable dependents. But contemporary
alimony is not about dependency; it is about partnership. In a recurring script, family life involves
teamwork: one parent prioritizes paid
labor while the other (typically a mother) prioritizes family labor. This sharing enables the couple to enjoy a
home and family; it also benefits the
primary wage-earner by allowing him to maximize his investment in paid
labor. Meanwhile, the primary caregiver
who takes on the lion’s share of family responsibilities incurs invisible
costs. Whether or not she also works for
a paycheck, the primary caregiver typically experiences an earning capacity
loss as a result of her family labor.
This phenomenon is so well known it has a name: “the motherhood penalty.” So long as the marriage remains intact and
income is shared, the primary caregiver’s earning capacity losses are
invisible. But if divorce prematurely
ends the partnership, these losses are fully exposed. The longer the marriage, the more likely the
primary caregiver’s earning capacity losses will be unrecoverable.
This common script is not a goal, but it is a reality
that explains why divorce tends to impact women more harshly than men. When marital property is scant, as it is in
most divorces, alimony is the only judicial tool for addressing the earning
capacity losses stemming from the marital division of labor. If marriage is a partnership, if marriage is
about sharing the joys and sorrows, the risks and costs and benefits of life
together, these losses should be shared.
This is why alimony matters.
2. Kicking
Grandma off the “alimony gravy train” In a
significant change from current law, SB668/HB455 creates several strategic
pro-payor presumptions that facilitate downward modification or termination of
alimony awards. These modification
presumptions apply to existing alimony orders as well as new ones. Their purpose and effect is to place the
burden of protecting an existing award, and of assuming the financial costs
necessary to do so, on the alimony recipient.
As a practical matter, this means that if the alimony recipient cannot
come up with the funds to hire an attorney and finance a defense, she will lose
her alimony or at least a chunk of it. This is a foreseeable and likely outcome since
alimony recipients are by definition less able to bear the costs of litigation
than payors.
The most troubling pro-payor presumption is triggered
by a payor’s retirement. Current Florida
law already allows a court to make a fair adjustment of alimony in such cases,
and rightly so. But SB668/HB455 goes
much further, creating a presumption that age-appropriate retirement alone
justifies reduction or termination of alimony without regard to any other relevant
factors. And there may be plenty of
other relevant factors—the payor may be asset rich, the marriage may have been
long, the recipient may have been a full-time caregiver of multiple marital
children and be unable to recover her resulting earning-capacity loss, the size
and duration of the alimony award may have been part of a settlement-agreement
tradeoff for a smaller share of marital property. The possibilities are many, for marriages do
not come in one-size-fits-all boxes.
Yet, while these facts are clearly pertinent to a proposed modification
or termination of alimony, the court may never learn of them. If the alimony recipient cannot bear the
costs of litigation, who will bring these facts to the attention of the
court? Probably not the payor.
It gets worse.
The likelihood that an alimony recipient will be unable to assume the
financial costs of litigation is increased by an alarming provision in SB668/HB455
that allows a court to reduce or suspend alimony while the modification
petition is pending. Stripped of
alimony, how can the already-financially-strapped recipient come up with the
cash necessary to resist a termination petition? Many cannot and will give up without a
fight.
There is more.
If the alimony recipient does somehow finance a defense to modification
but loses, she risks punishment at the hands of a judge who decides her attempt
to protect her alimony was “unreasonable.”
The punishment? She is liable for
the payor’s attorney fee. No matter that
the payor picked a high-priced, Palm Beach lawyer. It’s not much of a leap to suppose that even
a mildly risk-averse alimony recipient with few financial resources will be
intimidated into giving up her award without a struggle. This seems to be the plan and it will likely
work. Shame on the drafters of SB668/HB455.
3. Why No
Task Force? The egregious outcomes
of the modification presumptions of SB668/HB455 may have been overlooked by the
Florida legislature. Maybe not. Either way, extensive reform of the economics
of divorce should have been undertaken only after careful deliberation and
consideration of the impact of reform on various groups—not just on payors, but
also on mothers and grandmothers and children, on the State (which may be asked
to support the former spouses of asset-rich payors), and on the institution of
marriage itself. Fairness demands that
every affected party have a voice. Some
charge that SB668/HB455 is the product of one-sided advocacy by wealthy alimony
payors. A task force inquiry into
alimony reform would go far in quelling this concern. The task force might be composed of men’s
rights groups, women’s rights groups, judges, attorneys (those who specialize
in high-asset divorces and also those who deal with low-income and
middle-income clients), law professors, and other volunteers.
A task force could prove invaluable in thinking
through another portion of the bill—the presumptive guidelines for calculating
the amount and duration of an initial alimony award. Guidelines may increase the consistency and
predictability of alimony awards, but guidelines themselves are empty
sets: it is the numbers that populate
them that ensure either consistent equity or consistent inequity. Some charge that the guideline formulae are
stingy and will produce awards that are significantly lower than current
awards. Will they? Has anyone compared the size of an alimony
award under SB668/HB455 with current Florida practice? If the outcome is different, was this
intentional? Is it an improvement? Where did the numbers in SB668/HB455 come
from? Did the legislature check out (and
reject) the 2012 Massachusetts alimony guideline legislation (enacted after a
multi-year task force inquiry)? The
guidelines in New York or those proposed by the American Academy of Matrimonial
Lawyers or those proposed by the American Law Institute? The 2008 Canadian guidelines, implemented
after a seven-year project? The formulae
in these guidelines all differ and none are like those in SB668/HB455. Which formula gets it right? The guideline formula is, of course, Florida’s
choice, but that choice should be informed, deliberate and careful—not hasty
and certainly not the result of a special-interest group dedicated to limiting
alimony awards. Grandma deserves
better.
Please veto SB668/HB455 should they come before you and
appoint a bipartisan task force of experts to explore the complex issue of
alimony reform. There are many good
reasons to do so.
Professor
and Scholar Cynthia Lee Starnes Bio:
Honors:
The
John F. Schaefer Chair in Matrimonial Law
Michigan
State University College of Law
2011
to present
The
Lizzie J. McSweeney Professor of Family Law
Michigan
State University College of Law
2009
to 2011
Senior
Associate Dean for Academic Affairs
Michigan
State University College of Law
2007
to 2009
Professor
of Law
Michigan
State University College of Law
Fall
1989 to present
Courses:
Family Law, Contracts, Family Dissolution Law Reform Seminar, Commercial
Law,
Secured Transactions
Professor
– Studies Abroad
Doshisha
University
Kyoto,
Japan
May-June
2013
Course:
Global Perspectives on Family Law
Education:
Columbia
University School of Law, LL.M., 1989.
Indiana
University School of Law, Indianapolis, J.D., cum
laude, 1983.
Indiana
Law Review – Note & Development Editor, 1982-83; Associate Editor,
1981-82.
Michigan
State University, B.S., with high honors,
1973.
Publications:
THE MARRIAGE
BUYOUT:
THE
TROUBLED
TRAJECTORY
OF U.S. ALIMONY LAW
(New
York University Press, May 2014)
Co-Author,
COMMERCIAL
TRANSACTIONS
UNDER
THE UNIFORM COMMERCIAL CODE
AND
OTHER LAWS (LexisNexis,
6th
ed.,
2011)
Editor,
UNIFORM
COMMERCIAL
CODE FORMS
WITH PRACTICE COMMENTS,
MICHIGAN
COMPILED
LAWS ANNOTATED,
vols 1 - 4, 3rd ed. and annual Annual Pocket Parts
(Thomson/West)
And,
over 20 Published Articles and book co-authorship in the area of Family Law,
the Socio-Economic Impact of Divorce and Alimony.
