Major Changes Made to Alimony and Child Support Statutes

This past session the Florida Legislature passed major legislation that makes substantive changes to Florida's alimony and child support laws. Governor Crist has signed the bill which becomes effective later this year. An overview of the changes are as follows:

(1) Creates a new type of alimony called "durational alimony;"
(2) Changes the threshold for triggering substantial time-sharing (which generally greatly reduces child support paid);
(3) Mandates certain findings of fact related to unallocated child support for multiple children;
(4) Establishes very specific requirements to impute income to a parent;
(5) Addresses poverty guidelines;
(6) Makes changes in the adoption laws; and,
(7) Addresses assignment of time-sharing by military personnel.

The Presumptive 50/50 Time-Sharing Myth

The revised parenting statute that became law effective October 1, 2008, (Senate Bill 2532) has been the source of at least one myth, namely that this law establishes a 50/50 presumption for time sharing.

There is a long history of attempts within the Florida Bar's Family Law Section at revising and improving the custody statute. In recent years a concerted effort was made by some to adopt a "mandatory or presumptive 50/50 custody" approach. This concept was thoroughly examined and the expert opinions of mental health professionals familiar with children needs were carefully considered. This idea was strongly rejected by the study committee based on the overwhelming opinion of these experts who felt that such presumptions are not in the best interest of children, each family being considered unique, with its own history and dynamics. The conclusion was that a one-size-fits-all approach was completely out of place in matters relating to children where a determination of the children's best interests, based on the circumstances of each family, is the controlling standard.

The new October statute did not alter the basic shared parenting principles of our law. The supporters of the 50/50 interpretation point to the specific prohibition against any presumption for the father or the mother (Section 61.13 (2) (c)), the absence of any other clear language, and the deletion of such terms as "custodial" and non-custodial" parents to make their argument. However, viewing the terminology deletions in isolation, and focusing on the lack of other language in this one section, is simply to look at less than half the picture. First, there is absolutely no language creating a 50/50 presumption, and simple logic would dictate that such a "climate changing" event would have been noted during the drafting. Second, parenting determinations are based on best interests, and the factors make it clear that best interest is to be determined by considering the detailed history of every family and its unique facts. See 61.13(3). Moreover, many of the factors contain specific language as to the parents' "demonstrated capacity" or "demonstrated disposition for..." performing particular parenting tasks. See 61.13(3) (a) (c) (j) (k) (o) and (r). Rather than starting with a full range of options to be used depending on the circumstances of each family, the 50/50 time sharing idea arbitrarily sets an artificial starting point. There is a proposed legislative fix is pending, making it clear that there are no presumptions as to time sharing and emphasizing that the individual circumstances of each family are to be considered in determining best interest.

Regardless of what percentage of time sharing may result, any parenting plan or time sharing schedule that is supported by a thorough application of the factors merits serious consideration; focusing on a desired end product, with only a passing regard for the factors, is to protect the perceived best interests of one parent at any cost, the very approach that the statute disfavors. Lawyers best help by putting the client in the best factual light, highlighting the involvement and caring for the child that has taken place, and can continue to be expected, or work towards rehabilitation if needed. This is going to take the kind of early review and preparation that good attorneys are known for, and a lack thereof will have serious consequences.

New FL Supreme Court Approved Parenting Plans

This past month, the Florida Supreme Court, came out with their approved parenting plan forms, along with some additional revised forms. These forms can be found at the Supreme Court's website, www.flcourts.org. The Supreme Court's website has two parenting plan forms. The first is a "regular time-sharing" parenting plan form and the second is a "safety based" parenting plan form. Prior to these forms, the parenting plan forms being used were independently created in various circuits across Florida. The Florida Supreme Court forms should make the plan forms used more uniform statewide. In truth, the old ones in use and the new forms are quite similar but there are a few small but significant differences like in the holiday visitation section and the extra-curricular activities section.