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Rick Scott Should be Cautious on Unstudied Alimony “Reforms”

February 25, 2016 - 4:30pm

I have spent almost 25 years studying and writing about alimony as both a law professor and The John F. Schaefer Chair in Matrimonial Law at Michigan State University College of Law.  If I have learned anything during this time, it is that alimony is complex.  Reform can have unintended consequences and so should be the product of a careful, deliberative effort to understand and improve the law rather than a one-sided push to protect alimony payors by kicking recipients off the so-called “alimony gravy train.” 

I am writing to encourage Floridians to urge Florida’s governor to veto Florida Legislature’s Family Law/Alimony Reform bills SB668/HB455 and to establish a task force to study options for alimony reform.  For the sake of the many Florida mothers and grandmothers who have invested in their families rather than a career or job, Florida’s governor should not sign either of these bills into law.  The bills are full of problems, but I’ll limit this op-ed to three critical points:

1.  Why Alimony Matters.  Alimony has an awful reputation, partly because its roots lie in old notions of wives as inevitable dependents.  But contemporary alimony is not about dependency; it is about partnership.   In a recurring script, family life involves teamwork:  one parent prioritizes paid labor while the other (typically a mother) prioritizes family labor.  This sharing enables the couple to enjoy a home and family; it also benefits the primary wage-earner by allowing him to maximize his investment in paid labor.  Meanwhile, the primary caregiver who takes on the lion’s share of family responsibilities incurs invisible costs.  Whether or not she also works for a paycheck, the primary caregiver typically experiences an earning capacity loss as a result of her family labor.  This phenomenon is so well know it has a name:  “the motherhood penalty.”  So long as the marriage remains intact and income is shared, the primary caregiver’s earning capacity losses are invisible.  But if divorce prematurely ends the partnership, these losses are fully exposed.  The longer the marriage, the more likely the primary caregiver’s earning capacity losses will be unrecoverable.

This reality explains why divorce tends to impact women more harshly than men.  When marital property is scant, as it is in most divorces, alimony is the only judicial tool for addressing the earning capacity losses stemming from the marital division of labor.  If marriage is a partnership, if marriage is about sharing the joys and sorrows, the risks and costs and benefits of life together, these losses should be shared.  This is why alimony matters.

2.  Kicking Grandma Off the “Alimony Gravy Train.”  In a significant change from current law, bills SB668/HB455 create several strategic pro-payor presumptions that facilitate downward modification or termination of alimony awards.  These modification presumptions apply to existing alimony orders as well as new ones.  Their purpose and effect is to place the burden of protecting an existing award, and of assuming the financial costs necessary to do so, on the alimony recipient.  As a practical matter, this means that if the alimony recipient cannot come up with the funds to hire an attorney and finance a defense, she will lose her alimony or at least a chunk of it.  This is a foreseeable and likely outcome since alimony recipients are by definition less able to bear the costs of litigation than payors.     

The likelihood that an alimony recipient will be unable to resist a petition to terminate or modify alimony is increased by an alarming provision in SB668/HB455 that, in cases of a payor’s retirement, allows a court to reduce or suspend alimony while a modification petition is pending.  Stripped of alimony, how can the already-financially-strapped recipient come up with the cash necessary to resist termination?  Many cannot and will give up without a fight, even though the payor is asset-rich and the marriage was long.

There is more.  If the alimony recipient does somehow finance a defense to modification, she may be liable for the payor’s attorney fee if her resistance is deemed “unreasonable.”  It’s not much of a leap to suppose that even a mildly risk-averse alimony recipient with few financial resources will be intimidated into giving up her award without a struggle.  This seems to be the plan and it will likely work.   

3.  Why No Task Force?   The egregious outcomes of the modification presumptions of SB668/HB455 may have been overlooked by the Florida Legislature.  Maybe not.  Either way, extensive reform of the economics of divorce should have been undertaken only after careful deliberation and consideration of the impact of reform on various groups—not just on payors, but also on mothers and grandmothers and children, on the state (which may be asked to support the former spouses of asset-rich payors), and on the institution of marriage itself.   Fairness demands that every affected party have a voice.  Some charge that SB668/HB455 is the product of one-sided advocacy by wealthy alimony payors.  A task force inquiry into alimony reform would go far in quelling this concern.  The task force might be composed of men’s rights groups, women’s rights groups, judges, attorneys (those who specialize in high-asset divorces and also those who deal with low-income and middle-income clients), law professors, and other volunteers.   

A task force could prove invaluable in thinking through another portion of the bill—the presumptive guidelines for calculating the amount and duration of an initial alimony award.  Guidelines may increase the consistency and predictability of alimony awards, but guidelines themselves are empty sets:  it is the numbers that populate them that ensure either consistent equity or consistent inequity.  

Several states and municipalities across the nation have drafted alimony guidelines, but the formulae used to populate these guidelines differ dramatically.  Did the Florida Legislature pick the “right” formula?  Did they compare the size of alimony awards under SB668/HB455 with current Florida practice?  If the outcome is different, was this intentional?  Is it an improvement?  Where did the numbers in SB668/HB455 come from?  The guideline formula is, of course, Florida’s choice, but that choice should be informed, deliberate and careful—not hasty and certainly not the result of a special-interest group dedicated to limiting alimony awards.  Grandma deserves better. 

In conclusion, I am personally asking Florida Gov. Rick Scott to please veto SB668/HB455 should either come before him and appoint a bipartisan task force of experts to explore the complex issue of alimony reform.  Florida has this opportunity to raise the bar on thoughtful, studied and equitable reform.  Now is the time to do so.

Cynthia Lee Starnes is a professor of law at Michigan State University’s College of Law where she holds the John F. Schaefer Chair in Matrimonial Law. 

Comments

Get over yourself, stop attacking women, like an adult.

Get over yourself and stop attacking hard working people.

Get over yourself Ant stop going after minor children, TAMMY...

Minor children? When have I gone after children? I have NEVER gone after children. A few children have parents who are quite suspect but I would never hold that against an innocent soul. Stop over-dramatizing and making false accusations.

Screenshots and REAL names don't lie!

It's time for some housekeeping on many laws, alimony being only one of hundreds of issues needing to be addressed. No, I am NOT divorced, but can see clearly enough that the author of this rubbage is more impressed with her own titles than the actualities of fairness and truth. GO TRUMP!

How about housekeeping our Florida State Legislators? Starting with every incumbent Republican fast tracking really horrible legislation. How about qualified people start making decisions for the citizens of Florida, not a few corrupt individuals and then the rest fall into place along party lines. Yeah, there's an idea!

Fast-tracking??? It's only been going on for 4+ years. Seems like that fast track has already been caught up in some molasses. And meanwhile the payers have to keep paying. The payers have to keep figuring it out while the parasites keep sitting on their couches eating bon bons.

"Task Force"? Why don't we go back to slavery (one man living of another or facing jail) and ask for "Task Force" to study it? I am sure fruit will be cheap, you know, maybe we can use slaves for construction, like housing would be cheap too. BTW, maybe I should sue my ex employer, you know, the job I had preventing from going to school and getting better education to get better job etc. Slavery is slavery, no matter how to suger coat it..

Using the term slavery to describe a wealthy person not wanting to part with their money is disingenuous to those who have actually had to live through actual slavery. There is no way to sugar coat slavery, you are just using it very wrong. Get a modification which is already a law, you will have to anyway if this passes. Considering this legislation is supposed to not be retroactive or is it? Lies, Lies, Lies

Please change the subject to: "Rick Scott Should be Cautious on Unstudied Slavery “Reforms” Our plantations needs workers! One man leaving of another or facing prison is not justice. Why not sue parents for not supporting children for life? There is blood line and love! Wife after divorce is not blood or love related, it's adversary who wants to 'hurt' the husband anyway she can.

My wife never worked, we have no children, she never contributed to anything in the marriage. She is a opioid addict, with violent behavior, I have screws in my knee after one of her attacks, I have permanent restraining order against her. Now, I an order by the courts to pay my attacker for live half my salary. ‘Power corrupts and absolute power corrupts absolutely’. Permanent alimony is an absolute power of one person over another, in the court with no jury, the corruption goes only one way, the way the law points to…. Maybe you just don’t know or you know but have support from the alimony recipients, I do imagine how plantation owners supported legislation that supported slavery. This is a civil rights issue, one day it will come out as such if laws on not being changed now. Yes, I feel like a slave, where the courts say ‘you are free man from the marriage but you owe your wife half your salary for life and if you do not pay then you go to jail’, or translated ‘slave you are free man but you have to pay your master for life, if you do not, you will be jailed’. What kind of justice is that?

Almost never does a wife get half of your salary even after twenty years. If your wife was so horrible why did u stay all those years? U had to have been married at least seventeen years for her to get permanent alimony. All these lies u people tell. Your stories have huge holes in them. Anyone who knows the law can tell you r lying and bending the truth. Either tell the true story or crawl back in the hole u came out of.

It very well may be half of his TAKE HOME pay. Once he pays all the taxes, medical insurance and tries to put a few dimes into retirement it doesn't leave a lot of take home pay. TAKE HOME pay is the actual money you have to pay your bills with. Alimony comes out of your TAKE HOME pay. It is not a pre-tax deduction.

OMG! R u actually serious? U have no idea the stupid ideas u r spreading. He does not pay her taxes. Actually it's a tax deduction for him. Get a life and stay out of things u have no clue about.

He most certainly pays her FICA taxes. And if she is on worker's comp which is non taxable, and works a secret job under the table then she doesn't have enough income to have to claim the alimony. I think I know just a tad more about that than you do. ;-)

Go have your "guy" take his issues with his ex up in Maine. Obviously you have your own personal issues, stop projecting your crap onto all of us here in Florida. Go find YOUR legislators and annoy them. Buh Bye!

Hi ...I'm still here...fighting for justice against parasitic leeches :-)

Alimony is currently based completely on judicial discretion. Their only requirement is to list the factors from the law, there are no restrictions because the law is full of words like "may" and "should" rather than "shall". Appellate courts always refer to the "broad discretion of the trial court" in alimony cases. Permanent alimony is legal after a 9 year marriage where the wife fails out of school, gets fired from her job for excessive absences, has affairs, and neglects the children to the point of losing custody. Some lawyers joke about "winning" alimony for these kinds of women, I know because I overheard a few of them laughing about it outside a courtroom. The idea of balancing "need versus ability to pay" is completely subjective. I paid over 50% of my net income as alimony to my ex, yet I had custody of our children and received no child support. Reform is needed.

Probably doesn't serve you here. I do not believe your story. About the lawyers laughing, yes, I believe that - so why don't you go after them and their fees? Why don't you back a law for new marriages?

Please know the law before u tell others something that's not true. Judges do have rules. U must be married at least seventeen years to get permanent. Please don't bend the truth.

There was no bending the truth in my comment. The current law only requires judges to consider the factors. Appeals regarding alimony are denied as long as the court listed all the required factors. The law allows for exceptions, and the exceptions don't require more justification than being noted on the court order. After listing the factors, a simple statement such as " the non-financial marital contributions of the (spouse) justify an award of permanent alimony" is enough, they don't have to go into detail. That is from my personal experience.

Please quote me the statues u r referring too? I am going through all this now as we speak. A appeal to the higher court as long as dint one is willing to pay for it. Again no permanent alimony unless u were married fifteen years and meet a lot of criteria. Get the facts

You said 17 years and now you say 15 years of marriage for permanent alimony. Which is it Karen. I'll tell you what it is. It doesn't matter how many. It can be ordered by a Judge and it doesn't matter. Just like a judge uses an order to bypass Federal law so he could put you in jail for the debt of alimony. Maybe you should study the law a little better. Discretion is the key word!

I'm so sorry I made a tying mistake. Please go online and read all about divorce laws. Then u can speak intelligently.

Fact: I pay permanent alimony after a nine year marriage. You can swear it is impossible, but it doesn't change my situation. Florida needs strict guidelines for fair and consistent alimony awards. The current system is not fair or consistent.

If you have that document sir I sure would like to see it. Post in on the first wives site so we can give u advice on how to get out of it.

When were you jailed for not paying alimony? That has not happened, that rarely happens when in arrears for child support and even then it takes a VERY long process starting with motions, hearings, judgements, enforcements, maybe a license suspension and then maybe a warrant. If you're going to spew BS, doing it well.

Alimony is a remnant of a dated patriarchal system. It makes absurd assumptions about women’s lack of agency and self-sufficiency. It must be abolished! — Never said by a Feminist

When equal pay and the ERA are passed, then patriarchy can be called dated. Women have agency - lots of it - and the world refuses to pay them for it, housewives being the most underpaid of all!

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