Florida’s “Cohabitation” Statute: The Revolution That Wasn’t
The enactment in 2005 of the supportive relationship grounds for modification of alimony, as set forth in F.S. §61.14(1)(b), generated more interest by the general public than any other recent legislation in the family law arena. Long before the bill became law, divorced spouses were seeking legal opinions on how the law might impact support obligations under existing final judgments and settlement agreements. The new provision was greeted simultaneously with cheers from the perspective of those paying alimony and jeers from those fearing unjust and draconian treatment of unsuspecting alimony recipients who were “just dating.”
Although the pertinent statutory lingo in question deals with the existence and consequence of a “supportive relationship,” the provision is generally referred to as the cohabitation statute. Reference to cohabitation, however, is not only a misnomer, but significantly misleading. The statute does not create any rights between cohabitants. Instead, it codifies a basis for modification of an alimony obligation between former spouses.1 The statutory language expressly sets forth the importance of an economic consequence from the relationship as the basis for modification:
This paragraph recognizes only that relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph. The existence of a conjugal relationship, though it may be relevant to the nature and extent of the relationship, is not necessary for the application of the provisions of this paragraph.2
As noted in the emphasized portion of this statutory excerpt, the focus is on the economic, rather than the conjugal, realities of the supportive relationship in question. This limitation has proven instructive in the cases that have been decided under the statute thus far. Before exploring the precedent that has evolved since the effective date of the statute, it is helpful to provide some of the backdrop which preceded the law’s enactment.
Prior to the new statutory language, the only bright-line basis upon which to terminate alimony was the death of either party or the remarriage of the receiving spouse. The scenario that frequently frustrated paying spouses was when the “significant other” paid some or all of the recipient spouse’s needs, but nonetheless the recipient spouse continued to receive the alimony because no actual remarriage occurred. The stumbling block frequently encountered in those cases was the inability to prove that the change was permanent — a statutory factor that had always existed for modification of alimony.
There were also sociological observations about the behavior encouraged by the former state of the law. This concern was expressed by Governor Bush, who questioned the impact on families resulting from the incentive to refrain from remarriage and instead to cohabit outside of marriage in an effort to avoid the termination of alimony.3
Against these and other backdrops, the supportive relationship legislation emerged. The question now is, “Has the supportive relationship statute drastically altered the landscape?” As will be explored more fully below, the answer is no. Nevertheless, the post-enactment cases have interesting issues worthy of note.
Appellate Decisions Thus Far
The battleground in the appellate cases has been over the role that the alimony recipient’s need should play in modification proceedings when the basis for modification is a supportive relationship. Interestingly, the word “need” never appears in the supportive relationship statute. While some argued that it was axiomatic that need would play a central role in determining an appropriate amount of alimony when a supportive relationship existed, others steadfastly minimized or rejected the notion that need had any place in the analysis at all.
At present, there are only four appellate decisions addressing modifications based on the supportive relationship statute. They have all been decided within an 11-month period. Because it has some bearing on the development of the law, the cases are addressed below in chronological order.
The first opinion was issued by the Fourth District in Donoff v. Donoff, 940 So. 2d 1221 (Fla. 4th DCA 2006). In that case, the Fourth District approved downward modification based on a finding of a supportive relationship, but reversed the trial court for failing to reduce the amount of alimony sufficiently. Factually, it was found that the former wife had a supportive relationship which had endured for 10 years that was “equivalent to a marriage.”4 The trial court error stemmed from its determination that the criteria of F.S. §61.08(2) did not apply in the analysis of the proper amount of alimony to award as a result of the supportive relationship.5 One of the central questions on appeal was whether the trial court must consider the recipient’s need for alimony in a supportive relationship modification context.
The Fourth District reasoned that the factors listed in F.S. §61.08(2) exist “to create standards governing the exercise of trial court discretion,” which in turn make the outcome of alimony determinations “more predictable.”6 Citing the pre-supportive relationship statute case of Mirsky v. Mirsky, 474 So. 2d 9 (Fla. 5th DCA 1985), the Fourth District in Donoff aligned itself with the Fifth District, stating as follows:
Nothing in any statute purports to eliminate these “relevant economic factors” when modifying alimony under section 61.14. Indeed section 61.08(2) specifies that it applies whenever the court is “determining a proper award of alimony” under the statute. We therefore join the Fifth District in holding that all applicable section 61.08(2) factors must be considered in modification proceeding under section 61.14.7
The opinion notes that not every factor applies in every post-judgment modification proceeding, but concludes that two factors are seemingly always relevant whether in an original determination or in determining the appropriate amount upon modification: “(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each…, and (g) All sources of income available to either party.”8
Because the trial court had failed to consider these factors, reversible error was committed.In particular, the opinion finds fault with the failure to consider the full amount of the former wife’s investment income and the income available from an IRA account which the former wife could access without tax penalty.9
The opinion goes on to state that in analyzing the amount of alimony to award, the trial judge overvalued the factor of the standard of living during the marriage.10 The opinion characterized the effort as one in which the trial court was determined to make an award that would leave the former wife in the same lifestyle she had grown accustomed to during the marriage when the two parties had shared the family resources and income. Judge Farmer took issue with what he characterized as an erroneous calculation by the trial court: “[H]is formula was that x divided by [two] must continue to equal x.”11
In applying the law to the facts of the case, the opinion notes that the former wife’s net worth approached $2 million; while the former husband’s was above $3.2 million. The opinion states that under these circumstances, the standard of living during the marriage may have no relevance in determining the amount of appropriate alimony upon modification stating that:
because the net worth of the ex-spouse seeking to continue to receive alimony is now considerably above any fear of impoverishment and, prima facie, would appear to amount to more than sufficient financial resources and income to meet her appropriate needs at the appropriate level when all of her financial resources and income are properly considered.12
The Fourth District also took the opportunity in the Donoff opinion to explain the burden of proof in alimony modification proceedings. The Fourth District adopts the reasoning of the First District in Bridges v. Bridges, 842 So. 2d 983, 984 (Fla. 1st DCA 2003), which held that when a paying spouse established that the recipient spouse is being supported by a cohabiting partner, the burden shifts to the recipient spouse to prove whether there is a continuing need for alimony. The rationale for shifting the burden of proof is based on the concept that the receiving party should “justify [the] amount of alimony because the true economic condition is uniquely within her knowledge and may not be available to the payor.”13
Applying the shifting burden of proof analysis to the facts in Donoff, the Fourth District reasoned that the former wife had substantial resources of her own combined with a history of substantial support from her companion. Thus, it appeared that nominal support would be adequate to protect her in the event of “any significant adverse change in her circumstances.”14The instructions on remand left no doubt as to the Fourth District’s view of the former wife’s likelihood of success upon the return of the matter to the trial court: “On remand the trial court shall allow [the former wife] to show — if she can do so even with financial resources of nearly $2 million and the significant income and the support of her cohabiting partner — that she continues to have any real need for alimony.”15
The next case to be decided was Bagley v. Bagley, 948 So. 2d 841 (Fla. 1st DCA 2007), which also raised the issue of whether need was a relevant factor in a supportive relationship modification case. The opinion is very short and offers no recitation of facts. In Bagley, the former husband appealed the denial of modification and argued that once a supportive relationship was shown to exist, the trial court was obligated to modify without consideration of the former wife’s need. The First District disagreed and affirmed the trial court’s denial of his petition, concluding that while F.S. §61.14(1)(b)2 catalogs a nonexclusive listing of other factors for the court’s consideration, the financial circumstances remain pertinent and the court was entitled to consider the wife’s financial need.16
The Fourth District again weighed in on the issue in the case of Zeballos v. Zeballos, 951 So. 2d 972 (Fla. 4th DCA 2007). Zeballos presented a modification grounded upon an alleged supportive relationship and an alleged decrease in the ability to pay based on voluntary retirement and other factors. Just as in Donoff, the Fourth District reversed the trial court for failing to reduce alimony sufficiently.17
A supportive relationship was found to exist because the former wife had been engaged to marry Mr. Camp for three to four years and they had lived together with her children in a home provided by Mr. Camp for five years. The former wife had no income. Mr. Camp had paid all the expenses for the former wife’s children as well.18
The trial court granted a reduction in alimony to $350 per month, commencing upon the actual date of retirement. The Fourth District applied the abuse of discretion standard and reversed, concluding that the reduction had not gone far enough. The appellate court noted that upon retirement, the former husband would have limited income of $1,149 per month and accordingly his payment of $350 in alimony “is still roughly one-third of his bare subsistence income.”19 In contrast, the Fourth District stated that “the former wife’s expenses are all paid by her fiancé and she no longer has a need for alimony.”20 On remand, the trial court was ordered to reduce the alimony obligation to $1 per year so that the trial court could retain jurisdiction to modify based on substantially changed circumstances in the future.
The most recent appellate decision on the supportive relationship issue comes from the Second District. In Buxton v. Buxton, 963 So. 2d 950 (Fla. 2d DCA 2007), the trial court denied the modification after concluding that the former wife was not engaged in a supportive relationship.21 The Second District reversed, concluding that the factual findings did not support the trial court’s conclusion.
The Buxton case provides a unique opportunity to examine facts which an appellate court found were so compelling that it required reversal of the trial court’s ruling. The opinion states the facts with a certain tone that is not to be missed, however, space limitations only permit a brief summary here.
The former wife and Wasco had been living together for 10 years in a home owned by the former wife before the relationship began. Wasco’s pre-relationship residence was leased to tenants. His driver’s license and voter’s registration listed the former wife’s home as his residence. They shared a bed, chores, maintenance, and upkeep. While there was testimony that Wasco paid rent, the former wife had never declared the same as income on her tax returns.22
The trial court found that although Wasco provided financial and emotional support, there was no supportive relationship for two stated reasons: 1) they did not have a joint bank account and thus did not pool their assets; and 2) because the former wife was employed, Wasco was not “fully supporting her.”23
The Second District found that most of the factual findings were supported by competent, substantial evidence, with the exception of the trial court’s finding that there was no pooling of assets. The opinion states that while there was no commingling of liquid assets in a joint bank account, the former wife and Wasco had in fact pooled their assets for living expenses. As evidence for this conclusion, the appellate court points out that the couple did not request separate checks when they had meals; they did not segregate and independently pay for their respective items at the grocery store; they did not evenly share the cost of travel; and the former wife had never claimed Wasco’s rent as taxable income until after the filing of the modification petition. The failure to report the rent as income was cited as the most important of the above factors.24
The opinion turns next to the application of the facts to the statutory framework and concludes that the trial court erred in failing to find a supportive relationship. In reaching that conclusion, the Second District succinctly summarized the facts as follows: “Wasco is providing economic and financial support to the [f]ormer [w]ife. The former wife and Wasco are in a long-term, committed relationship that provides both economic and social support equivalent to that of a marriage.”25
According to the Second District, the trial court’s error began with its assumption that a supportive relationship requires that the alimony recipient be fully supported by the new companion. In its view, “nothing in section 61.14(1)(b) requires the recipient spouse to be completely dependent on the cohabitant before a ‘supportive relationship’ can exist.”26 The statute creates a lesser standard in that F.S. §61.14(1)(b)(2)(d) makes the relevant inquiry the extent to which the parties have supported each other “in whole or in part.”27
The Second District provides one other very important bit of guidance to the trial court and practitioners in its instructions on remand. The opinion states that once a supportive relationship is deemed to exist, the sole issue on remand is whether to reduce or terminate alimony. The opinion was concerned about the potential for confusion stemming from a Senate staff analysis document which had concluded that the supportive relationship statute was to “provide an alternate method to a court to reduce or terminate alimony, without first having to find that there has been a change in financial circumstance, as is the case in current law.”28
The Second District was concerned that the quoted language from the staff analysis document could be construed as legislative intent to abolish the requirement to consider the needs of the recipient spouse. The opinion reviews pre-enactment case law and the statute as a whole in reaching its conclusion that the needs of the recipient spouse are still an essential part of the analysis of whether to terminate or reduce alimony once a supportive relationship has been established.
The Second District found that despite any suggestion that the legislative history abolished the need requirement, the language of the statute itself shows otherwise.29 Similarly, even though the new statute had been silent on how a trial court should exercise its discretion once a supportive relationship was found to exist, the Second District determined that the factors of F.S. §61.08(2) must be considered in making any award of alimony, including modifications under a supportive relationship analysis.30 In reaching that conclusion, the Second District indicated that it had aligned itself with the First, Fourth, and Fifth districts in holding that the factors set forth in F.S. §61.08(2) apply to modification proceedings under F.S. §61.14(1)(b).31
How the courts have applied certain facts to the statutory factors may surprise some practitioners. However, in this area of the law, as with many others in the family law arena, it is rare that one fact standing alone compels a particular result. Instead, the totality of the circumstances appears to govern, just as the statute intended.
Nonetheless, in the four appellate cases now decided on the issue of modification grounded on supportive relationships, two clear trends have emerged. First, establishing that a supportive relationship exists does not in and of itself mandate a modification. Second, there must be proof that the alimony recipient’s needs have actually reduced. The appellate courts that have reached these issues appear to be in agreement on these concepts.
As more cases work through the system and up to the appellate level, the existing trends as stated above will likely continue. As for emerging areas of dispute, the most fertile ground would appear to be modifications under prior settlement agreements. In particular, cases involving language in settlement agreements concerning restrictions on future modifications will likely make their appearance on the appellate stage. Likewise, settlement agreements with built-in cohabitation clauses that pre-date the supportive relationship statute are surely going to be actively litigated on the issue of the proper interpretation. So while this article indicated in its subtitle that no revolution has occurred, perhaps it would be more accurate to say that no revolution has occurred yet.
1 The legislation expressly states that the statute does not abrogate the requirement that every marriage in this state be solemnized under a license; does not recognize a common law marriage as valid; and does not recognize a de facto marriage.
2 Fla. Stat. §61.14(1)(6) (emphasis added).
3 See Letter from Gov. Jeb Bush to David Mann, secretary of state (June 10, 2005) (filed with his approval of the bill).
4 Donoff v. Donoff, 940 So. 2d at 1222-1223.
5 Id. at 1223.
8 Id. (citing Fla. Stat. §61.08(2) (2005)).
9 Id. at 1223-24.
11 Id. at 1225.
13 Id. at 1226.
16 Bagley, 948 So. 2d 841 (citing Donoff v. Donoff, 940 So. 2d 1221 (Fla. 4th D.C.A. 2006); Fla. Stat. §61.08(2)).
17 Zeballos v. Zeballos, 951 So. 2d 972, 975 (Fla. 4th D.C.A. 2007).
18 Id. at 973-974.
19 Id. at 975.
21 The opinion in Buxton is also worthy of careful study for its recitation of the standard of review on appeal of supportive relationship modification cases. The Second District concluded that the trial court decision presented a mixed question of law and fact and, therefore, called for a mixed standard of review. A trial court’s purely factual findings must be supported by competent substantial evidence. In reviewing a trial court’s conclusion on whether those facts establish a supportive relationship, the appellate court review is de novo. If a trial court determines a supportive relationship exists, the standard of review on a trial court’s decision to reduce or terminate alimony is an abuse of discretion.
22 Buxton, 963 So. 2d at 952-53.
23 Id. at 953.
24 Id. at 954.
27 Id. (emphasis added).
28 Id. at 951. (citing Sen. Staff Analysis, C.B./S.B. 152 at 12 (Feb. 25, 2005)).
29 Id. at 955.
30 Id. at 955-956.
Odette Marie Bendeck is the managing partner of Fisher & Bendeck, P.A., and board certified in marital and family law. Ms. Bendeck currently serves as the co-secretary of the Family Law Section CLE Committee. She has authored and lectured on various family law topics for the Bar and general public.
This column is submitted on behalf of the Family Law Section, Allyson Hughes, chair, and Susan W. Savard and Laura Davis Smith, editors.