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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

Many women are for equitable reform. But this is not it. If this 'reform' could produce equity I doubt there would be any debate. An independent study is the only way to ensure equity for all parties involved. And in FAMILY COURT, equity is JOB 1.

“...is not about dependency; it is about partnership”: could you give an example of any other type of partnership where one partner has to support another (ex-) partner for life. “ When marital property is scant, as it is in most divorces, alimony is the only judicial tool for addressing...” Apparently you didn't study very hard nor well, it is in those marital estates which do have assets that you lawyers go after workers for alimony.  “Stripped of alimony, how can the already-financially-strapped recipient come up with the cash necessary to resist termination? You don't seem to consider the alimony payer works for a living and has to take time of work while he is jerked around with depositions, delays, and postponements by the recipient's lawyer. Nor do you mention the payer is the one who has the expense of paying alimony which makes it difficult to afford a lawyer. “A task force could prove invaluable...” You sound like the supporters of slavery in 1850 – let's study it and see what can be done! You're a lawyer – then read the Thirteenth Amendment – it doesn't just bar slavery but also “nor involuntary servitude.” As a lawyer you should become familiar with the peonage laws. In the 1850's there were those who said slavery could not be eliminated because the slaves could not take care of themselves. Today you claim another peculiar institution can't be eliminated because the masters can't take care of themselves.

Yes I can name another partnership where Someone else has to pay the other person. It's called a business. U ever heard of it? Partners don't just get to walk out on the other without payment being made. They are bought out for their time and service. They don't just get to clean out the bank like my husband did and walk away. Wake up!!

No, in a partnership the partners divide up the current assets of the partnership and go their separate ways. One partner is not required to support the the other for life, nor have mastery over the other partner for life, nor have a piece of the other partner until death. Big difference!

It's amazing slavery was brought in this discussion since non paid labor is slavery. No woman I know of ever earned a paycheck or was able to contribute to 401k IRA or social security. This is financial death for the woman upon divorce. If most divorces are filed by women there is a mistress involved. There is obvious fear at the mention of an unbiased task force for a needed impact study. Perhaps Mr Frisher won't be able to 'have their ear' as he does our legislators. And perhaps he will loose his pressure of presence for an aspiring legislative job. This reform should be something which is best for all not the few. Mr Frisher has hidden retroactively and undue financial burden in these bills. Fairness is not in these bills rather the oposite is true. If marriage is a partnership so should any be reform. An unbiased impact study will result from a partnership of all opinions and people involved.

You can still contribute to an IRA and if you are married longer than 10 years you will be able to draw of your EX husband's social security. Maybe what is truly needed is a POST nuptual agreement once the kids start coming. If you two together agree to one of you staying home then the other will pay alimony for the same # of years spent staying home +4 years. That will be compensation and time for an education. And during the time the person is out of the workforce there is an agreement to contribute the same percentage of wage into an IRA as what the bread winner is putting into his/hers 401K.

Speaking of slavery, I was divorced in Florida. My ex did not work and we did not have children. She stayed home and played with the cats. The marriage was just under 17 years. Florida Alimony gave her $2000/month FOR LIFE! On top of that, she got half of one retirement earned by me and a substantial portion of the second plus her IRA that I funded for her. So do I feel like a slave.......absolutely.

I don't believe your story. If she was so bad and played with cats all day like u say then why did u stay for seventeen years? I think u Found someone else and dumped her. That's the only thing that makes sense. I could see a couple of years but seventeen. OMG we r not stupid.

17 years? No kids? What did YOU do that caused her to have her breakdown?

Maybe she has mental illness and he felt bad for her. Maybe he took his vows seriously for as long as he could. It wouldn't be the first time someone stayed too long for those reasons. And it wouldn't be the first time a person paid dearly for that.

Is that why your "guy" stays but won't put a ring on it?

No ring as long as there is a noose. But that doesn't change the level of commitment, love and respect. It may even enhance in a small way.

Well said Carol. You covered everything!

"But contemporary alimony is not about dependency; it is about partnership." A divorce abolishes that partnership, and women initiate the majority of divorces. If women with no income of their own and no marketable skills want to go on living off the men they marry, they should make some effort to stay married. Failing that they can market the skills thy do have - housekeeping, childcare. I am sure their is a healthy market for domestic labor in Florida.

So we should stay married to someone who abuses us or our kids? We should stay married to a cheat and catch AIDS etc. Really? Would u stay if that was the case?

The same excuse is offered year after year. Establish a task force to review this and that. How about establishing a task force looking into how you get the leaches off the tennis court and contributing?

If it had been done years ago, reform would be done.

A real man does not call a woman a leech. A real man wants to know the facts before he decides what needs to happen. A real man looks at both sides of a story. A real Man U r not!!

Florida's alimony laws need to be reformed. The Florida legislators can understand the issues without any need for a task force. Payors or recipients of alimony can make their opinions known to legislators and the Governor. If you involve the lawyers, you are likely to get mostly family law attorneys dominating attorney involvement and a great many of them have a vested interest in the keeping the present system. The Florida Bar has allowed the Family Law Section to lobby the legislature on the issue of alimony reform without input to the process from other Florida Bar members who never or only infrequently handle family law matters. A period of alimony that is less than permanent may be appropriate when, by agreement, the husband works and the wife stays home to raise the children and it is a long term marriage of twenty years or more. But this is the 1950's Ozzie and Harriett marriage and very few divorces today fit that model. Permanent alimony is being awarded to wives who have had multiple spouses and in cases where there are no children from the marriage with the paying husbands often having children from a previous marriage.

Would need to include more than just lawyers, for God's sake - nothing like putting the fox in the hen house. The FLS of the FL Bar is in violation of its own ethics if it backs this law. But I think they aren't all for it, they have been silenced.

Modification exists and is a law. Go get one, no one is stopping you.

No one except the judge and the courts. Everyone who has spent even a minute in family court knows a modication is a mythical carrot.

Tammy I don't know why u have to constantly lie on these blogs. These blogs are for people who genuinely have a problem. We know the laws and many have been through it. So if u can't please speak truth stay on these sites.

You aren't very knowledgeable in family law or court. Stop talking about things you know nothing about and you are more than welcome to check out my docket, your "friends" know how to find it. Yeah, let me know about all those mythical carrot I never asked for.

First hand knowledge. I don't have to make up stuff. I could care less about you and your baker act. Do you get lifetime alimony?

Wow, for someone who does not care about me, you sure like to attack and hit. Nannette is not doing my ex any favors by taking to my ex husband and posting our personal lives all over social media. It's only making HIM look really bad. Get the ENTIRE story.

Thank you for your perfectly executed and articutlate article. You stated facts without emotional and immature name calling or reverences. Every single divorce is completely different in too many ways to number. There cannot be a one fits all rule. My divorce was a two hour mediation and was agreed upon by my former husband, at that time, until Alan Fisher started is "campaign". Alan Fisher is a totally warped individual who is only representing alimony payers for his own emotional revenge, and financial gain. If you give Mr. Fisher 10k a year, you will get special ( wink wink) services. I would like to have him publish his own financial portfolio so all can see where these " donations to HIS cause"' really go. Bribery is the oldest trick in the book and any politician that aligns with him should be taken with extreme caution. None of them will ever get my vote. They are too easy to buy. Even all of the First Husband's group do nothing but use derogatory inferences to the mothers of their children and then turn around and fight with each other. Mr Fisher will have a lot of taint on his hands for what he has done to create a lynch mob of former husbands againest their former wives, which has led already to so much terror and pain Inflicked on families which can never be erased. it is just pure evil. We have very educated and experienced Judges, that can make unbiased decisions in the worst of divorces. Accordingly, every Settlement Agreement provides modification for health, disability and retirement. The payers can enjoy a rich life and have a companion or "home maker", but alimony recipients are forced to live alone for the rest of their lives. The percentage of divorces that were caused by infidelity is very, very high. It does tremendous damage to a woman's self esteem and her ability to trust again, which is the real reason so many of us remain single. Again, Thank you Ms Starnes for a educated an unbiased article. Kelly Jarvis

FL is a no fault state. Alimony is not supposed to be a punishment. There are lots of women who "decided to move on" then demanded alimony. Alimony law needs to be brought in line with the rest of the country and with the times. Many of the women professing they are destitute have been shown to live in luxurious homes and have college degrees and some even already own and run their own business. They have been been shown to be deceitful and self serving. Can't believe a word most of them say. You can check the first husbands advocacy group on facebook. Real documents are posted there. Real addresses with real pics of fancy homes. REAL EVIDENCE of the manipulation to hang on to the gravy train. And yes it IS a GRAVY TRAIN. What about the poor grandpa who split all his assets then paid the ex even after his own wealth was depleted and now is paying her part of his retirement? All the while she is living with a boyfriend and working whatever job she wants or not working at all. She hasn't had to bat one eyelash at the downturn in the economy. What about that???

Thank you Kelly!

Get a job. Support yourself, like an adult.

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