The Florida House is poised today to approve a bill severely curtailing alimony and imposing on families and the courts an illogically-worded “approximately equal” custody mandate. I have previously written against both the alimony and custody provisions, and my opposition hasn’t changed.
Nineteen out of 20 recipients of alimony are women. The mostly male opponents of alimony, however, paraded a series of women payors through the legislature to testify against permanent alimony. Sitting through a hearing in the Senate Appropriations Committee recently I was struck with how obviously the female payors of alimony have the same interests as the male payors, they earn a lot of money and they don’t feel like the partner who helped them achieve their high earning capacity should reap any of the fruits of their joint labor. They don’t even seem to recognize that there was joint labor.
It is no wonder that divorce is one of the most economically damaging events in the lives of women and families. For men too, sometimes, but when the formerly happy couple allocated responsibilities within the marriage, if one was to be the breadwinner and the other a stay-at-home homemaker and parent, it was usually the wife who gave up a career and the husband became the breadwinner. Historically, when such couples broke up, alimony was a way to equalize the financial impact of the divorce, for example, to keep a fifty-year old stay-at-home mom with no employment skills or education from being cast to the curb, to be destitute upon divorce or later in life.
The bill poised for passage today demolishes that function of alimony.
No longer will a judge be able to order “bridge the gap” alimony to keep one of the parties from being homeless until he or she has a stable living arrangement. Bridge the gap alimony can be used for a short time, say six months, to pay a deposit on an apartment, buy clothes for job interviews, put food on the table, pay bus fare to work – the mundane but necessary things for the non-working spouse to get back on his or her feet. The pending bill eliminates bridge the gap alimony.
No longer will a judge be able to order “rehabilitative” alimony. One of the most frequent complaints I receive about alimony is that it keeps one former spouse dependent on the other. Some people say we should be giving the dependent spouse “a hand up, not a hand out.” That’s exactly what rehabilitative alimony does. It helps a formerly dependent spouse complete a clearly defined training or educational program, or maybe just to catch up on continuing education and regain a certification or a license that lapsed because the spouse was a stay-at-home mom or dad. The pending bill eliminates rehabilitative alimony.
No longer will an elderly woman who can’t get a job because of her age be able to receive a part of her husband’s earning capacity, despite having helped build that capacity by giving up her own employment and education.
In place of judicial discretion, the bill creates an arbitrary and capricious calculation scheme. With no economic study to back it up, the bill mandates use of low percentages of income and limited timeframes to determine how much and for how long alimony will be paid. The calculation scheme is clearly designed to protect the paying spouse – at the cost of financial injury to the recipient spouse.
Ironically, the calculation scheme creates an entitlement to alimony where it doesn’t presently exist. The bill instructs that there will be no alimony for marriages of under two years. But breadwinners in “short” marriages, say two to eight years, will now be subject to the possibility of paying alimony for up to three fourths the length of the marriage. Paying alimony for six years after an eight year marriage is an unlikely occurrence under current law.
The alimony provision is retroactive
Sponsors Senator Tom Lee and Senator Kelli Stargel both claim the new alimony law will not be retroactive. That simply is untrue.
The bill establishes an elaborate scheme for modification of alimony awards. It contains no statement that it doesn’t apply to existing alimony orders; therefore, its modification principles apply to all orders.
Particularly unfair is the automatic hearing a payor of alimony is entitled to if the recipient’s income goes up ten percent. And at the modification hearing, the ten percent rise in income is “presumed” to be a substantial change of circumstances warranting a downward modification of alimony.
The bill is stacked against the woman resisting changes in alimony or pursuing increases. Threats of requiring her to pay attorney fees will intimidate many women into surrendering their alimony.
How will this play out? A man earns, say, $175,000 a year at a job in a profession he qualifies for in part because of the contributions his wife made to the marriage for 28 years. Ten years ago he was ordered to pay alimony. The former wife has few marketable jobs skills and is in poor health and able to work only 20 hours a week. She gets a raise from $10 an hour to $11. The former husband is entitled to a modification hearing and a presumption that he’s entitled to a reduction in the alimony obligation, and the woman is confronted with the possibility of having to pay her ex husband’s attorney fees if she objects to the modification.
There is no fairness in that situation. And if that same couple is divorcing under the proposed law, the new calculation scheme will likely mean that the wife’s alimony will be less and will end automatically by a certain age. She may then be in poverty and most likely on public assistance.
This is a bad, bad bill.
Child custody and timesharing
Present Florida law establishes a state policy that separated and divorced parents should both have frequent and continuing contact with their child and should share parental responsibility. Statutes and case law provide detailed and broad guidance to judges in how to achieve those goals while establishing custody/timesharing that is in the child’s best interest. That is a good approach.
The pending bill upsets that apple cart. The proposal is aimed at vindicating a parent’s right to be with his or her child. That approach puts the parents first and minimizes the impact of the bill’s further requirement that a judge determine what custody arrangement is in the best interest of the child.
When this bill and a companion bill were introduced a few weeks ago, the custody portion imposed on the court a presumption that equal or 50/50 custody/timesharing is in the best interest of the child. I previously objected to that bill and explained the effect of legal presumptions. Bowing to pressure from different places, Sen. Lee amended the bill to change the presumption language to this:
In establishing a parenting plan and time-sharing schedule, the court shall begin with the premise that a minor child should spend approximately equal amounts of time with each parent. Using this premise as a starting point, the court shall formulate a parenting plan and time-sharing schedule taking into account the best interest of the child after considering all of the relevant factors in subsection (3).
I don’t see much difference between a premise and a presumption, linguistically at least. Legally, though, centuries of litigation have refined the rules governing legal presumptions. Lawyers and judges know what it means to be confronted by a presumption. The judge has to start by believing a specific fact and if one of the parties thinks it’s untrue, that party has to prove that it’s wrong. There is no history of litigation explaining what premise means in this context. As I explained to the Senate Appropriations Committee, this new word is going to create years of uncertainty and great expense until eventually the Florida Supreme Court defines it for us years from now.
Similarly, “approximately equal amounts of time” seems simple on its face, but there will be much litigation to determine what it means. Is 8 days out of 14 with one parent and 6 with the other approximately equal? How about 9 and 5? To accomplish approximately equal timesharing, should the judge order that the child go back and forth every other day, swap off once a week, spend a semester in one school near one parent then spend the next semester at a school near the other parent, move back and forth every other year.
Much uncertainty is introduced into the law by this new language. And the whole notion of 50/50 custody or approximately equal timesharing introduces uncertainty into the lives of kids. Where am I sleeping tonight? What address to I put on my application for college? Where am I supposed to go after school today? Kids need more certainty, more stability than will be possible for those affected by this law. The legislature does not have social science to back up its attempt to impose its view of families on the courts and real families.
As a family and domestic violence court judge for many years, I made thousands of custody and visitation (or timesharing) decisions. I also heard testimony of many mental health experts and attended course after course of judicial instruction on family dynamics. My experience and education teach me that approximately equal timesharing is not a starting point for deciding what’s in the best interest of kids. Equal timesharing is occasionally in their best interest, but not usually.
Consider these complicating factors:
- The parents don’t get along with each other. Expecting them to work together on a 50/50 custody basis is a pipe dream. A 50/50 premise doesn’t serve anyone’s best interests.
- The parents live in different school districts, or different cities, or counties, or even states. Approximately equal timesharing isn’t feasible.
- There is domestic violence. Requiring frequent interaction between the parents can lead to more violence, probably in the presence of the child.
- The child is 8 weeks old and breast-feeding. That baby needs to be mostly with the mother.
- The mother is a drug addict, the baby was born with cocaine in its system. Need I explain that one?
- The parents have never been married to each other and the father has spent no time with the child, but now that he’s being ordered to pay child support he wants to enforce his rights under the new premise of approximately equal timesharing. This is a common scenario. Over forty percent of all babies born in the United States have unmarried mothers. You can bet the the legislature didn’t take that fact into account when formulating its timesharing premise.
I could list many more scenarios. But those are enough to prove that exceptions to the premise overwhelm the premise itself. The premise is just wrong. It is not in any specific child’s best interest for the judge to have a mindset when deciding where that child is going to live that the child should spend equal time with both parents – with the judge not yet knowing anything about the child or either parent.
The present law is best for making custody decisions. The parents start off on equal footing. No presumption. No premise. Without favoring the mother or the father, the judge ferrets out what timesharing arrangement is in the best interest of that child and applies the state’s policy, which is generally accepted in the mental health community, that in the absence of proof to the contrary, “frequent and continuing contact” between the child and each parent is probably a good thing for that child.