Most of the debate over alimony reform, which just passed the Florida Senate and could be debated on the House floor this week, has centered on the financial implications the bill would have on Florida’s families. Yet there has been a troubling lack of debate over a recently added component that could be far more damaging.
Last month, Sen. Tom Lee, R-Brandon, sponsored a committee amendment that significantly changed the nature of the alimony reform bill (SB 718) by declaring equal time-sharing as being presumptively in children’s best interest, with limited exceptions. Fifty-fifty time-sharing is ideal, and sounds like a great idea in theory. But as with the rest of the bill, the devil’s in the details.
Spouses who have already negotiated time-sharing based upon the best interests of the children may find themselves dragged back to court as the person paying alimony decides that 50-50 time-sharing, and the accompanying reduction in child support obligation, is a great idea, whether that parent is prepared to be a parent half the time or not.
Our argument against this bill from the start has been that it would create uniform rules where flexibility is needed. No more so is this true than when it comes to making child custody arrangements. What Sen. Lee proposes would unwind parameters that have worked well for years.
In 1994, the Legislature abolished the “Tender Years Doctrine,” calling it an impermissible gender-based preference for the mother as custodian of a child of “tender years.” Instead, the Legislature clarified that the primary consideration in determining custody and visitation should be which parent had the bulk of the day-to-day care of the children. The historic caretaker typically became the “primary residential parent” and a presumption was created against “rotating custody” — equal time-sharing. The presumption was based upon the opinions of many mental health professionals, who felt that, generally speaking, it was in the best interests of children to have a “primary” home with a “primary” room, etc. Child support calculations reflected the time spent with the child(ren).
In 2008, the Legislature abolished use of the words “custody,” “visitation” and “primary residential parent” in family law actions. “Visitation” was replaced with “time-sharing.” The presumption against “rotating custody” was removed, and parents had to create a “parenting plan,” as opposed to following recommended court guidelines.
In 2010, the Legislature further reduced child support by making the number of overnight visits a variable in the calculation. In a marriage where Dad has been the traditional breadwinner, earning $100,000 annually, and Mom does not earn, but is employable and could earn $25,000 annually, child support for two children would be $1,566 per month if Dad had 30 percent of the overnights.
Under the 2013 bill, in this example the number of overnights would change to 50 percent, and the monthly support would drop to $902. Because the traditional breadwinner would have equal time-sharing, he would incur higher child care costs, and the historic caregiver would have to pay 22 percent of these costs, further diminishing the funds available for support of the child(ren).
Any changes in Florida alimony law should reinforce the discretion allowed to trial courts, not eliminate it. This can be established by creation of fair alimony guidelines instead of draconian rules. SB 718 is neither fair nor well thought-out.
If equal time-sharing becomes the rule, spouses will end up with a serious reduction in funds available to support children. Although divorce is supposed to leave spouses in the same general condition they enjoyed during the marriage, this rarely happens anymore. But the most serious and immediate harm would be to children with a parent whose resources the state has severely restricted and diminished.
Eddie Stephens is an attorney with Ward, Damon, Posner, Pheterson and Bleau. He is board certified in family and marital law.