Key Legal Defects of SB668 Family Law/Alimony "Reform" Bill That Demand a VETO and TASK FORCE

 

 

FAMILY LAW/ALIMONY "REFORM" BILL SB668 - KEY LEGAL DEFECTS THAT DEMAND A

GOV. SCOTT VETO AND TASK FORCE

 

(Expert Analysis and Conclusions)

 

·         Numerous published studies reflect that divorce is a poverty creating event for women and children (97% of alimony and the large majority of child support recipients are women); Single divorced older women are persistently the largest demographic living in poverty in the U.S.

 http://www.slate.com/articles/business/the_bills/2016/03/how_divorce_exacerbates_the_retirement_crisis_especially_if_you_re_a_woman.html
 

·         Lack of substantiation for bill's expansive rewrite of existing statutes, bill's arbitrary calculators/guideline presumptions, and bill's sweeping unstudied reform and public policy shift.

 

o     Alimony payors receive at least equal income as recipients as F.S. Section 61.08(9) precludes court from awarding payors less than half of income earned barring exceptional circumstances.  Florida statute already provides for shared equal legal custody while child time sharing/splitting correctly remains foremost in the “best interest of the child."

 

·         Bill is retroactive as women who are in traditional marriages and/or whom have justifiably relied on alimony will be deprived by the changes in the law upon divorce. Bill substantially ‘codifies' multiple new unreasonable triggers to readily open the door for modification of prior settled awards, court orders and contractual agreements -- any modification then retroactively requires the courts to apply the bill’s new lowered standards. 

 

Even SB668's own Senate Staff Analysis Report questions the unconstitutionality of the bill's retroactive application to prior legal contractual marriage settlement agreements.

 

·         Bill creates a statutory Public Policy mandate of "premised" equal 50/50 child timesharing with the best interests of the child secondary.  This can only be overcome through costly litigation.  This will be the most stringent , 'presumption-like' application of 50/50 child time sharing in the nation, setting an unsubstantiated national precedent.  Florida and National Family Law experts note:
 

“This bill gives equally split timesharing to both parents no matter if it is in the children’s best interest of not – a struggling addict is presumed to be equally able to care for their child.  Since a judge is commanded (via the word 'shall') to apply this 50/50 premise as a starting point -- a wed or even never-wed parent will have to enter into costly litigation with expensive third-party evidence to protect an at risk infant or child.  There is also a constitutional issue with Separation of Powers when the Legislature commands the Judiciary to adopt an unsubstantiated and not widely accepted 'premise'.”

 

·         Bill has NO economic impact study accurately reflecting the burden on government budgets and social services of the legislation. (Florida Legislators ignoring the impact on state social services, entitlement programs and the legal system).  Cursory Senate and House Bill Staff Analyses are replete with misrepresentations, missing information and inaccuracies regarding budget impact, economic, social-welfare and detrimental legal consequences.

 

·         Alimony exists to promote marriage and its explicit/implicit promises and partnership by equitably supporting a spouse’s contribution to the marriage when giving up jobs or raising children.  Over 30% of all women and nearly 40% of Hispanic women are stay-at-home mothers -- Over 52% of whom have children under the age of 5. (PEW Research Study 2014).

 

o   Downstream impact on Child Support:  Alimony is a key input into the Florida Child Support Calculator and presumed to be income available for the recipient to assist in the support of minor children as well as themselves.

 

·         Persons wanting exception from public policy of divorce may negotiate alternative terms in a bargained for contractual arrangement of a Prenuptial Agreement.

 

·         Bill eliminates all existing statutory forms of alimony except for fixed-term, limited duration regardless of party’s economic needs and ability to pay.  Then, alimony term lengths (durations) are arbitrary and unreasonably short bearing no relationship to actual economic need and ability to continue to pay support. (The economic effects can be permanent—why only as little as 25% to 75% of length of marriage support durations even for long-term marriages?)

 

 

·         Bill's alimony/support guidelines yield amounts that are arbitrary, unsubstantiated and unreasonably low, requiring expensive litigation to overcome. (Barely reaches 40% taxable in a 20+ year marriage which is not economic parity, especially as alimony is taxed as income to recipient and a tax write-off for the payor.  Can only reach a somewhat more equalizing 50% taxable in a 20+ year marriage IF a stringent, limited list of concurrent criteria are successfully litigated into evidence.) Why is the woman’s contribution worth so much less than the primary wage earners?

 

·         How is a woman in a 15-20 year marriage who has no skills to survive when her husband earns $10,000 a month gross and she earns nothing on $1500 to $2000 a month (especially if rotating custody and the father has equal timesharing economically "premised" but doesn’t actually exercise the timesharing)?

 

·         Even minimal increases of income of recipient spouse over any period of time justifies and triggers a modification without any consideration of inflation -- any modification then retroactively requires the application of the bill’s new lowered standards.

 

·         Bill gives the obligor a termination of alimony presumption upon reaching age 65 and retirement no matter the economic effect on the recipient spouse.  This is also retroactively applicable, regardless of whether the recipient contractually gave up retirement assets in order to secure a contractually assured long-term stream of support.

 

·         No recognition that Florida alimony recipients per Fl. Supreme Court ruling in Mallard v. Mallard are disallowed to have any savings component.  What is to economically happen to recipients when obliger retires yet recipient has been legally disallowed from accumulating their own retirement savings safety net?

 

·         How does the recipient ever retire given that they will have no savings, no support and no retraining given limited sums received as alimony for a limited, fixed duration?

 

·         The court is obligated to suspend alimony upon obligor’s mere filing of a petition for modification of alimony and before the completion of the court review; this is legally unjust and potentially unconstitutional.

 

·         Respondent to modification of alimony petition (the recipient) is penalized by increased risk to pay the obligor’s attorney’s fees and costs if trial court arbitrarily determines that they “unreasonably defended” themselves against the petition;  This is an unreasonably high penalty and counter to long-standing statute governing the rights to equitable representation and defense.

 

·         Potential income and requirements for employment are limited to “local” available job and only “near residence”—What happens when industry moves and spouse refuses to move with the prior job?  What happens when spouse intentionally moves to low employment areas to advert paying court ordered or contractual alimony and child support?

 

·         Bill provides no ($0) alimony (not even bridge the gap) in a 2 year marriage even if a spouse has given up a job, has become disabled, has become the primary caretaker of a disabled child or is economically impacted by the marital decision to raise children.

 

·         Bill makes income and assets of  obligor's subsequent spouse not discoverable by recipient and non-admissible in modification action to prove subsequent spouse supports obligor spouse to manipulate income.  Constitutional issues likely exists with these undue limits on recipient's rights to discovery and admission of critical evidence to show that obligor and subsequent spouse are manipulating obligor's reported income, needs and ability to pay.

 

According to one of Florida’s most esteemed retired Family Law Judges:

“This bill dehumanizes the uniqueness of families and people. Children become a ploy instead of a person.  A passage of this bill and adoption into law disrespects women and cheats children.”

 

 

GOV. SCOTT PLEASE DON'T IGNORE THE  FACTS AND DEFECTS OF THIS ILL-CONCEIVED BILL.  VETO SB668 AND FORM A PROPER EXPERT TASK FORCE TODAY!

 

 

The Pitfalls of Florida Alimony Reform Bill, SB 668 - Gov. Scott EIGHT FACTUAL Reasons to VETO SB668 and Form a Task Force

The Pitfalls of Florida Alimony Reform Bill - Gov. Scott Eight FACTUAL REASONS to VETO SB668 and Form a Task Force

 

The clever folks who crafted the alimony reform bill, SB 668, that is currently heading for Governor Scott's desk, are being too modest when they claim that it only ends permanent alimony. In reality, this bill is larded with so many sneaky provisions, triggers, and euphemisms, it could end all alimony in Florida as we know it and upend child support and custody laws at the same time. We ask the readers to consider eight major flaws in this bill that its creators have not quite succeeded in glossing over:

 

1. Why No Task Force?

 For a bill that promises to completely overhaul the alimony law in Florida, it is curious that no task force appointed by the state legislature has been formed to study the current situation. Just this month in Vermont, the Senate Judiciary Committee approved a bill that would create a “Spousal Support and Maintenance Task Force” to consider whether changes are even needed. Likewise in Massachusetts, the paragon of alimony reform, the report from the  Massachusetts Bar Association's Joint Alimony Task Force was approved by the House of Delegates in advance of presenting the bill that became the Massachusetts Alimony Reform Act of 2011.

For the Florida legislature to make such sweeping changes to family law without any kind of study would make it a notable oddball and outlier in the family court system.

2. Encourages Frivolous Motions

 

The bill has a novel provision that allows alimony payers to stop paying alimony when they file a modification, and unlike in some states, the payer need not pay into an escrow account so the money can be rightly rewarded at judgment. The menace here is as obvious as it is intentional: any alimony payer who finds their ordered payments unwarranted can sidestep a judge's order by filing modification after modification. Not only will this flood the court system with a multitude of modification filings, it will cause immediate and unfair hardship to alimony recipients.

 

3. Detrimental to Lower-Income Women 

The bill includes the so-called "10% Trigger," a provision to suspend alimony payments if the recipient ex-spouse receives a rise in income of ten percent. Interestingly, this new mechanism has no minimum that the ex-spouse must be earning before it activates. For the ex-spouse making minimum wage, a "raise" of a few coins per hour can easily terminate their alimony and toss them into penury. A few years of COLA could do the same. How many women in Florida could this potentially affect? The alimony reform group is blocking the task force, so that we aren't burdened with inconvenient statistics. 

4. Why No Input from Those Affected?

When the task force for alimony reform in Massachusetts was convoked, it included members from a variety of women's groups, including an attorney from the Women's Bar Association to speak for the interests of the poorest women in the state. This bill has been written solely by current alimony payers with an obvious vested interest.

 

5. Does It Affect Previous Judgments?

Much debate has swirled around the issue of whether this bill will be applied, "retroactively": whether alimony agreements made previous to the bill's passage will be amended to match the new laws. Various representatives of the alimony reform group have assured us, with a wink and a smile, that SB 668 will not affect any agreement currently in force. But they know, as well as we do, that previous modifiable agreements are always subject to modification proceedings based on current law unless explicitly stated otherwise.

 

This means that previous alimony agreements, wherein an ex-spouse agreed to a smaller share of marital assets in return for a larger alimony payments, could now expect to see that alimony severed based on the new guidelines. A great boon for alimony payers, but a travesty for recipients who will be taken unawares.

It is interesting to reflect on the fact that requests to insert a non-retroactivity clause in the bill have been shrugged off; amendments to the bill, in the Florida Senate and House, requesting the same non-retroactive wording have been rebuffed.

 

6. "Fair and Balanced"?

 

It is interesting that a bill bleating about unfairness fails to take into account the number of contempt of court orders currently outstanding. It would be impossible to estimate without a task force, but anecdotal evidence suggests that the number of ex-spouses who don't pay their ordered alimony, do not sign over marital assets ordered by the court, or drain savings/retirement accounts is legion. By blocking the request for a task force to study this phenomena, the alimony reformers show a latent disdain for any fairness in the court system that does not benefit them.

 

7. Why is Child Sharing in an Alimony Bill? 

The bill's oddly includes a new "premise" of judicial support for 50/50 child sharing, which will affect child support. If passed, this bill will make Florida an anomaly in the country. In no other state with updated family court laws is child sharing treated in the same bill as alimony reform. In Massachusetts, our best and most recent example, new laws on child sharing, custody, and support were only passed after an expert group was assembled to study this vast and complex issue and issue a transparent report. SB 668 wants to do away with experts, evidence, and witnesses beholden to the state of Florida, and "wing" child laws that will affect hundreds of thousand of young Floridians.

 

8. A Delay Tactic vs. Due Diligence of Lawmaking?

Only the alimony reform groups of Florida have scoffed at the request for a task force. In every other state mulling over such drastic changes to family court, a bi-partisan task force of experts has been assembled to study the economic effects of the current law, interview volunteers, and make recommendations based on empirical data. Their findings are then presented to the state legislature at the capitol, as well as newspapers, for debate. In Florida, the reformers seemingly would like to skip over the due diligence of crafting fair, evidence-based laws; they would like to ignore any conflicting opinions or evidence; and they would like the public to remain ignorant of the ripple effect these laws might have on Florida's citizens.

In Florida, we need smart laws that work as intended. If Florida cannot have a task force to study probable outcomes for these laws, perhaps we should all have our license plates re-struck with a new motto: Florida, Making It Up As We Go Along.

 

Sources:

http://vtdigger.org/2016/03/11/alimony/

http://www.realworlddivorce.com/Massachusetts

http://www.massbar.org/publications/lawyers-journal/2007/december/mba%E2%80%93bba-task-force-debates-future-and-fairness-of-alimony-awards

http://www.massbar.org/publications/lawyers-journal/2011/november/alimony-for-the-real-world

http://www.mass.gov/courts/docs/child-support/2012-task-force-report.pdf

Retired Florida Circuit Judge Jones Urges Gov. Rick Scott to VETO SB668 Family Law "Reform" - It's Retroactive, Drastic, Heavy-Handed and One-Sided

Now retired Circuit Judge Earnest Jones has specialized in Florida Family Law for over 26 years.  In his position as Judge in the Tenth Judicial Circuit, he oversaw what is arguably one of the most stressful courtrooms in the Judicial Circuit: dependency court, where the judge hears cases concerning children who have been abused or neglected by a parent.  The full text of Judge Earnest Jones letter to Gov. Rick Scott is below:

March 7, 2016

 

Governor Rick Scott

State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001

 

Re: Senate Bill 668 ("An act relating to family law")

 

Dear Governor Scott:

 

          The Florida Legislature, which appears to be on a rampage this session, recently passed the above-referenced bill.      Professor Cynthia Lee Starnes, The John F. Schaefer Chair of Matrimonial Law at Michigan State University, and one of the nation’s foremost alimony experts and published scholars, sent you a letter dated February 22, 2016, which expressed her concerns with the bill and urged you to veto it and appoint a task force to study alternatives. I write this to second her concerns and her recommendations.

          I specialized in family law from 1980 until I was elected as a Circuit Judge in 2006 in the Tenth Judicial Circuit. (I am now 72 and retired.)  I will not argue that the alimony current statute is perfect, but I will categorically assert that its defects are not of such magnitude as to warrant the wholesale modifications envisioned by this bill. Indeed, one wonders what could have prompted the Legislature to enact such drastic and one-sided changes in well-settled existing law, changes that will have far-reaching and, one fears, unintended consequences. As one of many examples, and in spite of the sponsors' protests to the contrary, this bill is in fact retroactive in that existing orders can be modified under the draconian new rules. If a man who was married to his physician-wife for thirty years has to take a second job because his alimony is not sufficient to support him and the couples’ adult disabled child, the former wife is entitled to a modification hearing if his income goes up by 10 percent, and the court is required to consider that increase a substantial change of circumstances supporting a modification even if the former wife-physician's income has gone up 50%! Moreover, as far as I can discern from the records, there were few committee hearings wherein the impact of the proposed changes were thoroughly discussed. One likens this government heavy-handedness to an extremely risky heart transplant being recommended by a single physician without adequate discussion with colleagues and consideration of alternatives for a 65 year old patient for whom a far less risky stint or bypass would have achieved the desired results.

           Thank you for your consideration of this letter and the recommendations contained herein.

 

Respectfully Yours,

Ernest M. Jones, Jr., Circuit Judge (Ret.)