Robert Doyel: The Legislature needs research before ‘reforming’ alimony

The Legislature is considering so-called alimony “reform” and a 50/50 “presumption” for child custody decisions. Both are bad ideas.

“Reform” legislation almost always seems to be about taking away rights, benefits, or protections from less well-off individuals to the advantage of more affluent people and big corporations.

Tort “reform” is a prime example.  Alimony “reform” continues that oppressive tradition.

The proposed alimony legislation is anti-woman, anti-family and arbitrary.  In some respects it’s also anti-man.  It’s so convoluted and oppressive that it’s hard to figure out where to start and where to end a critique. But here it is.

The unstated purposes of the legislation seem to be to end the possibility that well-off guys might have to pay permanent alimony, and to give well-off guys a ready-made legal basis for reducing alimony previously ordered.

Presently, a judge considers the evidence and determines if one spouse has the ability to pay alimony and the other spouse has a need for support.  If there is a need and ability to pay, the judge decides a reasonable amount of support under the circumstances and how long the alimony should be paid.  Alimony can be ordered for a few months, a few years, many years, or permanently.

Presently, a judge can order short-term “bridge the gap” alimony, say six months, to give the receiving ex-spouse time to get an apartment, pay deposits on utilities, find a job, etc.  Bridge the gap alimony has been “reformed” right out of the law.  It will presumptively no longer be available for spouses who are essentially homeless because of their divorce.

In some circumstances, a stay-at-home spouse doesn’t have an adequate earning capacity and needs “rehabilitative” alimony for a year or two to finish school, complete occupational licensure requirements, or undergo vocational training.  To be awarded rehabilitative alimony under the present system, a spouse has to have a specific plan of training that the court finds to be reasonable in duration and expense, and likely to result in employment.

Like bridge the gap alimony, rehabilitative alimony has been “reformed” right out of the law. It will no longer be available for spouses who need it.

Under the proposed law, the judge would be required to determine a range of possible alimony amounts by applying an arbitrary formula pulled out of thin air.  The formula multiplies the difference between the two spouses’ incomes times the number of years they were married then multiplies the resulting figure by factors of .015 and .020.

The judge determines the alimony from the range between the two numbers that result from this calculation. The multipliers, .015 and .020, are purely arbitrary figures not explained in the proposed statute.  Nowhere do we find a justification for them. No study was done. No data is cited. The drafters just pulled these figures out of the air.  These numbers apply to all cases: one size fits all.  There is no justice in applying the same figures to all cases.

No one has made a finding that those numbers are “appropriate” or “equitable.”  Yet the judge cannot order more or less alimony unless the judge files a written order that the presumptive range is “inappropriate” or “inequitable” in a particular case.  This is a major flaw in the bill.

The Legislature is attempting to force judges to order alimony in a specific dollar range that the statute presumes is appropriate and equitable when in fact the statute may be inappropriate or inequitable as a starting point.

A similar problem exists with the duration of the alimony.  Once again the drafters of the bill have plucked numbers out of thin air.

The judge is required to presume that the alimony term should be between 25 and 75 percent of the length of the marriage.  For a 20-year marriage, that would be five to 15 years.  That presumption ends permanent alimony without saying so.

The proposed law’s duration ranges are unrealistic.  Let’s take two examples, one in which the woman would be hurt and one in which the man would be.

Let’s assume a 25-year marriage, a wife who is 45 and has been a stay-at-home caregiver for the couple’s disabled child.  The child has reached adulthood at the time of the divorce, but the adult child will require the same stay-at-home caregiving for the rest of the mother’s life.  The wife will not receive child support for adult offspring of the marriage.

Under the bill, alimony will terminate well before the woman turns 65, maybe soon after she turns 50.  The mother and the adult disabled child will be impoverished, maybe both living off of notoriously low Social Security disability benefits paid on behalf of the adult child.  That is very unfriendly to stay-at-home moms.

Men can be hurt by the proposed legislation too.  As a judge, I ordered alimony in hundreds, probably thousands, of cases.  If I had applied the proposed duration range to marriages of seven years, each and every husband in a seven-year marriage who earned more than the wife would have been presumed to have to pay alimony for at least 21 months and maybe as long as 63 months.

That kind of an alimony award is unlikely under the current system for such short-term marriages.  Bridge the gap or rehabilitative alimony is more likely to be ordered, and almost never for five years in a seven-year marriage.

So this bill is very anti-man in short-term marriages of two years or longer.  The bill presumes that there will be no alimony at all, bridge the gap or otherwise, in marriages that don’t last more than two years.

Perhaps the greatest travesty in the proposed statute is the ease with which alimony orders can be modified and the application of the new rules to modification of alimony orders entered long ago.

For example, fat cats who have previously been ordered to pay a reasonable amount of alimony are entitled to a modification if the ex-wife’s income goes up by 10 percent even if the increase is due to inflation.  However, the wife is not automatically entitled to an increase if the ex-husband’s income goes up by 10 percent.  Also, the proposal provides for an automatic review of alimony when the person paying alimony reaches retirement age.

No one in the Legislature has ever provided a factual or logical basis for the proposed changes.  The guidelines are entirely arbitrary.  There has been no study of how the proposed changes would affect families, especially women and children, but also men.

There is no established need for reform of alimony laws in Florida.  The proposed legislation’s overhaul should be rejected until proponents can produce research that shows that the present system is unfair.  And they should prove what impact the “reform” will have on Florida’s women, children, families, and taxpayers.

Without that research, my experience as a judge leads me to conclude that the beneficiaries of the proposal are rich guys who don’t want to support wives who have dedicated their lives to supporting them.  And those wives, as well as young men who would not be ordered to pay alimony under the present system, are casualties of the Legislature’s desire to please the fat cats.

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Robert “Bob” Doyel retired in 2010 after nearly 16 years as a Florida judge, primarily in family court.  He has served on the Florida Supreme Court Steering Committee on Families and Children and as chair of domestic violence subcommittees.  Column courtesy of Context Florida.