Tag: equal custody

Equal Timesharing Bill Blowing through Tallahassee

The winds of change are blowing as the latest equal timesharing bill, CS/HB 1395, moves through Tallahassee. Many parents, lawyers, psychologists and other experts wonder whether Florida will start requiring equal timesharing in all child custody cases.

Equal Timesharing

Typhoon Timesharing

It seems as if each new Florida legislative season has turned into a new hurricane season, dropping invasive lobbyists into Tallahassee to change our native, home-grown child custody and alimony laws.

Not surprisingly, once again the equal timesharing bill is hidden inside an alimony reform bill. Regarding alimony, Florida currently recognizes five main types of alimony: temporary, bridge-the-gap, rehabilitative, durational, and permanent.

In determining the type, amount, duration, and later modification or termination of an alimony award, the court has broad discretion but may only award alimony after initially determining that one spouse needs alimony and the other spouse is able to pay alimony.

For alimony purposes, this year’s House Bill increases presumptions relating to the length of a marriage, changes the types of alimony available, prohibits an award of alimony if the payor has met certain requirements for retirement before filing for divorce and prohibits an award of permanent alimony.

But few people – other than the experts and lawyers studying the bill – know that the alimony reform bill also creates a presumption that equal timesharing is in the best interest of a minor child. If passed, House Bill 1395, would codify into law a presumption of 50/50 timesharing between divorced parents. While this sounds fair, it poses a real risk to children.

Florida Timesharing

I’ve written on the legislative efforts to change to an equal timesharing state before. Historically, Florida courts have consistently ruled that a parent’s desire and right to the companionship, care, custody, and management of his or her children is an important interest that warrants deference and, absent a powerful countervailing interest, protection.

Florida law provides broad guidelines to assist courts in determining parenting and time-sharing of children based on the best interests of the child standard. It has been the public policy of Florida that each child has frequent and continuing contact with both parents after separation or divorce, and to encourage parents to share the rights and responsibilities, and joys, of childrearing.

To meet that state policy, there has not been a presumption for or against the father or mother of the child or for or against any specific timesharing schedule when creating or modifying the parenting plan of the child, and no presumption in favor of a specific time-sharing schedule when the parties are unable to agree.

Just as each divorce is unique, and is treated in a unique way, each timesharing schedule for a family is treated in a unique way for that family. By taking each case individually, you have a better chance of creating a parenting plan that best fits the children involved.

Winds of Change?

But now Florida is facing a Category 5 change. House Bill 1395 amends Florida law to create a presumption that equal time-sharing (commonly referred to as “50/50 time-sharing”) is in the best interests of a minor child common to both parties unless otherwise agreed to by the parties. This would be for every case, instead of the case-by-case basis looking into the details of what is best for kids.

This year’s legislative session started on January 11, 2022 and is scheduled to wrap up on March 11, 2022. The bill provides an effective date of July 1, 2022.

The Tallahassee Democrat article is here.

Florida Alimony Reform 2021

Florida Alimony Reform 2021 is back in the news as the Legislature once again takes up how alimony and child sharing are handled in family law courtrooms. This year’s bills in the House and Senate have many changes, including the elimination of permanent alimony and an equal timesharing presumption.

The Sausage Factory

As  WLRN reports:

“I was married for 17 years to a man who quit working the minute we were married. I supported about seven different businesses that he ran into the ground. He abused drugs and alcohol. And he was abusive to me and our two children.”

Shultz says she was ordered by the court to pay her ex-husband $5,250 per month for the rest of her life. I cannot retire because I have alimony payments to pay every 30 days,” Shultz says. House Bill 1559 would also allow payments to end when the person providing the alimony reaches full retirement age as determined by the U.S. Social Security Administration—with exceptions.

Under existing case law, someone paying alimony can apply to have their alimony adjusted or terminated upon reaching the normal retirement age for their job or profession.

Florida Alimony

I’ve written about subject of alimony in Florida before. In every Florida dissolution of marriage case, the court can grant alimony to either party – husband or wife.

Not many people realize there are several types of alimony in Florida: temporary, bridge-the-gap, rehabilitative, durational, and permanent. In determining the type, amount, duration, and later modification or termination of an alimony award, the court has broad discretion but may only award alimony after initially determining that one spouse needs alimony and the other spouse is able to pay alimony.

If a court awards or denies an alimony request, it must consider enumerated factors and may consider the adultery of either spouse or any other factor it finds necessary to achieve equity and justice between the parties. An alimony award may be modified or terminated when the circumstances or financial ability of either party changes, including changes due to a receiving spouse’s supportive relationship or a paying spouse’s retirement.

Florida courts can also award a combination of alimony types in a divorce. Alimony awards are normally paid in periodic payments, but sometimes the payments can be in a lump sum or both lump sum and periodic payments.

In determining whether to award alimony or not, the court has to first make a determination as to whether a wife or a husband, has an actual need for alimony, and whether the other party has the ability to pay alimony.

Typically, courts consider any type of earned income or compensation — that is, income resulting from employment or other efforts — along with recurring passive income, such as dividends on your investments, in establishing the amount of support you will be responsible to pay.

In Florida, once a court determines there is a need and the income available to pay alimony – sometimes referred to as the ability to pay alimony – it has to decide the proper type and amount of alimony. In doing so, the court considers several factors, some of which can include:

  • The standard of living established during the marriage.
  • The duration of the marriage.
  • The age and the physical and emotional condition of each party.
  • The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

Other factors, such as the earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate are also considered.

No Time Like Equal Time?

A very strange component of the Florida alimony bills is that the bills deal with parenting time with children. The proposed bills would create a presumption that 50/50 time-sharing of children would be in the child’s best interest — meaning both parents would have equal time with their child.

Right now, timesharing is analyzed in detail. The existing law requires judges to evaluate several different factors in determining an appropriate parenting plan for a child. Rep. Emily Slosberg (D-Delray Beach) questioned the change during a meeting on the bill:

“So, under your bill, if there is hypothetically one parent who is drug-addicted and another parent who has really been caring for the child—under your bill, this would create a presumption that 50/50 is in the best interest in the child.”

“Absolutely not,” bill sponsor Miami Republican Rep. Anthony Rodriguez (R-Miami) said in response. “I mean, you walk into the courtroom, and there is a presumption of 50/50 time-sharing, but, in that scenario, specifically in the scenario representative, it is obvious that the judge would not grant 50/50 time-sharing to a drug-addicted parent.”

“There is a clear nexus between alimony and time-sharing, and we believe that when you walk into the courtroom, the focus of the divorce should be the children. And there should be an equal time-sharing of such, and if for whatever reason that should not be the case, then the judge can decide that,” Rodriguez says. Rodriguez says his bill allows for the presumption of 50/50 time-sharing to be rebutted by a judge.

Obvious? Philip Schipani is a family law attorney who represents clients who have special needs children. He says judges don’t always have a full understanding of a family’s situation. He worries the presumption created under Rodriguez’s bill will put an extra burden on his clients.

“And right now, I have a pending case—a child with special needs—this presumption if they put a 50/50—the father hasn’t seen the child for four years. Not only [does] the child [have] severe special needs, the husband’s a recovering drug addict who hasn’t seen the child in years. So, then you slap this presumption on, and then I have an extra burden to overcome. Not only do I have to explain the child’s condition, explain the drug addiction, I have to overcome this presumption as well,” Schipani says.

The WLRN article is here.