Purposeful navigation through the seas of social change: a theory-based approach to Florida alimony reform.

• Author: Larkin, Alexa Revord
• Position: Family Law

The law changes to reflect behavior or concepts that society has deemed acceptable. (1) As such, the malleability of the law is crucial to its survival amidst the endless waves of social change. One area of Florida law that has recently been subject to change is alimony. (2) Looking back from 2014, the rights and roles of men and women have changed drastically since the concept of alimony originated in England in the 19th century. As a result, alimony's purpose in contemporary Floridian society has been questioned. (3)

Accordingly, efforts to modify Florida's alimony (4) laws, F.S. [section][section] 61.08 and 61.14, (5) have been underway for several years. In 2005, the concept of reducing or eliminating an alimony obligation due to the recipient spouse entering into a supportive relationship (and not just remarriage) was introduced. (6) The Florida Legislature then modified several aspects of alimony effective January 1, 2011. (7) The 2011 changes included defining lengths of marriages, creating durational alimony, and adding additional factors for judges to consider in determining whether to issue an award, how much to award, and what kind of alimony to award. (8)

Reform advocates have maintained that the foregoing changes have been insufficient to fully align alimony with contemporary society's needs. (9) Therefore, the Florida alimony statute returned again to Tallahassee in early 2012 with H.B. 549, (10) which included dozens of proposed changes. (11) H.B. 549 would have radically modified alimony, favoring more structured standards and hard and fast rules for alimony awards. H.B. 549 would have eliminated permanent alimony and set alimony duration at half the length of the marriage in some cases. (12) The changes would have also minimized judicial discretion by requiring judges to provide written reasons for ordering longer awards and eliminating the court's ability to reserve jurisdiction to reinstate alimony. (13) H.B. 549, like its Senate companion bill, died in Senate committees.

Similar alimony reform efforts were attempted in 2013 with S.B. 718. (14) S.B. 718 also attempted radical changes to alimony similar to those proposed in 2012 H.B. 549. S.B. 718 passed the House and the Senate and was sent to the Governor, who subsequently vetoed it on May 1, 2013, over concerns related to some retroactivity provisions. (15)

The 2014 legislative session saw no proposed changes to alimony; (16) however, its return to Tallahassee in the 2015 session would be unsurprising. The failings of prior House and Senate bills, and complete avoidance of the issue at the most recent legislative session, illustrate larger philosophical disagreements about how alimony should be adapted to reflect the needs of modern Florida society.

Although change in alimony law is seemingly inevitable, change without a purpose could spawn unproductive outcomes. If the people of Florida are passengers and the legislature is the captain of the ship, then changing alimony laws for the sake of change would be akin to embarking on a nighttime oceanic voyage without a navigational guide. As with any journey, Florida's captain needs to know where Florida came from to determine in which direction Florida is headed.

The history and theories of alimony should serve as the navigational guide to Florida alimony reform in 2015 and beyond. This compass should help Florida legislators carefully navigate the seas of social change to efficiently craft an alimony law that mitigates harm to all involved while best reflecting the needs of modern Florida society.

The Birth of Alimony

* Before Divorce Was Possible--Florida's alimony laws were born in England. (17) English common law is premised upon the idea that a married woman's identity merged into that of her husband upon marriage (called coverture), so the husband assumed control of her assets. (18) Consequently, the husband bore the moral and legal obligation to provide for his wife because she essentially became a nonperson lacking employment opportunities, access to her property, (19) and even the ability to contract, sue, or be sued. (20) Until 1857, only legal separation was available (21) in the ecclesiastically controlled courts. (22) The husband's duty to financially support his wife continued during legal separation despite the end of the couple's cohabitation. Thus, alimony was born as a means to enforce a husband's lifetime obligation to support and sustain his wife. (23)

* Fault-based Divorce System: A Damages Theory for Alimony--England's concept of alimony made its way to Florida while the state was first forming. (24) Prior to 1971, (25) divorce in Florida was based on one party's fault. (26) Alimony under the fault-based divorce system was rarely awarded (27) because the spouse desiring the divorce had to prove the other one breached his or her marital obligation due to adultery, cruelty, or abandonment. (28) An alimony award in an at-fault divorce was analogous to compensatory damages award in a tort claim in which the innocent spouse was compensated for the guilty spouse's wrongful conduct. (29) This damages theory only required a guilty spouse to pay alimony to an innocent one (30) and it predominantly benefitted wives, offering a husband limited opportunities to receive alimony when his wife was the guilty party. (31)

Alimony Theory in a No-fault Divorce

California was the first state to pass a no-fault divorce statute in 1969. (32) The concept of no-fault divorce was strengthened by the endorsement in the Uniform Marriage and Divorce Act (UMDA) in 197033 and, by 1987, a no-fault divorce was available in all 50 states. (34) Florida has not fully adopted the UMDA; however, it has adopted many provisions, (35) including the no-fault divorce. (36) A no-fault divorce permitted one spouse to unilaterally petition for divorce and permitted the court to grant that petition without a finding that a party breached a marital obligation. The new system treated divorce as "the product of complex spousal dynamics beyond the understanding, and the appropriate inquiry, of a court of law" (37) and attempted to afford parties a "clean break."

This revolutionary change in divorce law eliminated the philosophical underpinning of alimony under coverture and at-fault divorces. (38) Therefore, new theories have emerged.

* The UMDA Need-based Rehabilitative Alimony Theory--The UMDA justifies alimony in a no-fault divorce as an award to help a "needy spouse" (one lacking sufficient property or employability to self-support) to rehabilitate him or her to self-sufficiency after a divorce (need-based theory). (39) After finding a reasonable need exists, the judge is vested with discretion to order an amount and duration of a maintenance award based on consideration of a number of factors. (40) Notably, the UMDA tries to control alimony awards by advocating that they should only be granted when property division is unable to provide equity (41) and, if awarded, it should extend for only the limited period necessary to rehabilitate the spouse to self-sufficiency. (42)

* The ALI: Alimony as Compensation for Loss Theory--In response to the limitations of the UMDA model, the American Law Institute's (ALI) Principles of the Law of Family...