Tuesday, March 8, 2016

Florida Legislature sends controversial alimony and child-support law to governor for approval

Posted By on Tue, Mar 8, 2016 at 5:43 PM

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For the second time, lawmakers are sending an alimony overhaul to Gov. Rick Scott, who vetoed a previous attempt at rewriting Florida's divorce statutes three years ago.

The proposal sets out a formula for judges to use when deciding alimony payments and lacks a retroactivity provision that Scott blamed in part for his 2013 veto.

But the measure, passed by the House in a 74-38 vote on Tuesday, includes an equally controversial component dealing with how much time children should spend with their divorced parents, a decision made by judges that also affects child-support payments.

The child time-sharing issue was at the center of an acrimonious dispute between two prominent GOP lawmakers – Senate budget chief Tom Lee and House Rules Chairman Ritch Workman – that caused a similar plan to die last year in the Legislature. Lee pushed to include the time-sharing issue, while Workman wanted it left out.

Workman has worked for years on the alimony revamp, finally gaining the endorsement of once-bitter opponents – the Florida Bar's Family Law Section and alimony reform advocates – for a formula that would base alimony payments on the length of time of marriages and the incomes of both spouses.

But, like last year, the Family Law Section is adamantly opposed to the time-sharing changes included in the proposal awaiting Scott's action, even after Workman signed off on language which Lee said "would soften" what he originally sought.

The inclusion of the time-sharing component prompted the Family Law Section last week to enlist additional lobbyists – including Scott's former legislative affairs director, Jon Costello, and Slayter Bayliss – to try to persuade Scott to veto the bill.

Workman said Tuesday he has spoken with Scott about the proposal but could not predict how the governor would handle it.

"He is very comfortable with the alimony side of this bill. I think we can get him comfortable with the time-share language," Workman, R-Melbourne, said.

The compromise between Lee and Workman, reached late in this year's session, did away with a proposed legal presumption that children would spend their time equally between both parents. Instead, judges would "begin with the premise that a minor child should spend approximately equal amounts of time with each parent" before considering other factors.

"It's semantics," West Palm Beach lawyer Elisha Roy, a former head of the Family Law Section who was instrumental in crafting 2008 changes to the state's parenting law, said in a telephone interview Tuesday.

Under the current law, there is no presumption in favor of either parent, but judges must decide what is best for the children, Roy said.

Despite the law, some judges continue to favor mothers when deciding how much time children should spend with their parents, Roy acknowledged.

But the Legislature's solution won't fix the problems that arise when divorcing couples fight over children – and child support – but will make them worse, especially for parents who can't afford to hire a lawyer, Roy argued.

For example, in a divorce involving a low-income family, a judge could decide that children should split their time equally between households and, as a result, neither parent should receive child support. But if one parent does not follow through with having the children half of the time, the other parent would get stuck with all of the children's expenses, Roy said.

"There is now zero child support flowing to one parent, and if one parent doesn't use his time, mom's now raising this child without any support from the dad. Who's paying for school trips? Who's paying for school pictures? To low-income families, that hit is hard," she said. "The issue is going to be the people who cannot afford to litigate these things."

But during Tuesday's debate on the measure, Workman – who said he fought for, and received, 50-50 time sharing with his children when he got divorced —- called the proposal (SB 668) a way to ensure that both parents are on equal footing when they go to court.

"What the Senate has sent us is not perfect language but … it will allow men and women to walk into a courtroom and have the premise that they're equally as good," Workman said. "At the end of the day, this looks at the kids."

But Roy argued that the proposal could lead to more courtroom battles not only in child-custody cases but also in paternity lawsuits in which absent fathers could use time sharing as a way to reduce child support payments, Roy said.

"You may have a 6- or 7-year-old kid who never met the father before, and the father gets hit with a child support order and files a paternity action in retribution, which happens all the time," she said.

The time-sharing provision, which would only apply to cases filed after Oct. 1, isn't the only part of the bill creating angst for critics, who argued that the alimony overhaul would harm stay-at-home moms who have a hard time finding jobs later in life.

Under the proposal, the duration of alimony payments would be based on the number of years of marriage, while the amount of the payments would rely on a couple's gross income —- the higher earner's salary minus the earnings of the spouse seeking alimony.

And the bill would make it easier for ex-spouses to stop paying alimony when they retire or turn 65, something that could be problematic for women – who make up 97 percent of alimony recipients – who don't have pensions, argued Rep. Lori Berman, a Lantana Democrat who is a lawyer.

"This is people's lives that we are playing with. We cannot afford to play games with people's lives. We need to think about the real-life consequences of this bill," she said.

But Workman said the legislation would provide certainty for divorcing couples, who now are dependent on judges' discretion about alimony.

The proposal "solves so many different problems that have been plaguing this state for so many years," Workman said.

"The inequality in alimony … and the gamesmanship that is used to keep one party indebted to the other, and the ripping apart of families that has caused, is solved in this bill," he said. "Giving certainty to divorcing couples for the first time in this state will be a healing mechanism."

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