Siding with a minority of liberals, Florida Governor Rick Scott (R) yesterday vetoed alimony reform legislation that Florida’s GOP-controlled legislature had passed by a margin of nearly two to one, even though it was supported by 70% of Floridians. Scott’s veto was unfair, anti-family, and anti-small-business. But it thrilled some wealthy divorce lawyers, who hired high-paid “lobbyists with close ties to Scott” to lobby him to kill the bill.
Scott vetoed the bill even though sponsors of the legislation removed the very provision in it that led Scott to veto an earlier version of the bill in 2013 (the fact that it would have applied to pre-existing alimony awards, rather than just those set in the future). The bill would have “eliminated permanent alimony,” replacing it with a more nuanced “formula, based on the length of marriage and the combined incomes of both spouses, for judges to use when setting alimony payments.”
Under existing Florida law, people can be forced to pay alimony even when they are blameless and their adulterous ex-spouse has moved in with a lover. For example, in Baxter v. Baxter (1998), the wife “fell in love with a woman friend and moved with her to a mountain top in Puerto Rico. Although the wife’s friend ha[d] an income of over $100,000 a year,” the wife sought and obtained “$860 per month” in alimony. In Heilman v. Heilman (1992), the state appeals court reversed the denial of an adulterous wife’s request for alimony after she moved in with her lover, rejecting the argument that “the family’s emotional devastation at the news of the extra-marital affair” weighed against alimony. No innocent spouse should be forced to pay permanent alimony in such circumstances.
Yet under Florida law, alimony is presumptively permanent, rather than for a shorter period, when the marriage is deemed long-term, such as a 17-year marriage. While alimony can play a useful role in helping a spouse get back on her feet after a divorce, that does not justify routinely or reflexively awarding permanent alimony. That is an archaic vestige of an earlier time when many jobs were closed to women, women were less likely than men to attend college, and the lack of modern appliances meant wives spent far more time doing housework than they do today, leaving them less able to financially support themselves.
To justify his veto this time, Scott disingenuously cited harmless language in the bill containing an initial “premise” that, absent evidence to the contrary, parenting should be shared equally by divorced parents, claiming that could somehow harm children. But this language was not really new: this provision was just a milder version of joint-custody language found in the earlier, 2013 version of the bill, which Scott never objected to on this ground. Such shared parenting laws are hardly unusual — states such as Iowa, Idaho, and Louisiana have a stronger presumption of joint custody. Even the liberal District of Columbia has a statutorily mandated “rebuttable assumption that joint custody is in the best interest of the child.” (See D.C. CODE § 16-91).
Scott’s veto is also bad for small business owners, business formation, and job creation in Florida. As I noted in 2013 in the Tampa Bay Times,
“Gov. Rick Scott’s veto of a bipartisan alimony reform bill missed an opportunity to improve the state’s business climate… . Florida courts have discouraged the creation of small businesses through one-sided alimony rulings that ratchet alimony up but not down. They are far more eager to increase people’s alimony obligations when their new business succeeds than to cut their alimony when their new business fails, even though both success and failure affect people’s income and their ability to pay alimony. Since most new businesses fail, this is a potent disincentive to taking the risk of creating a new business. Thus, Scott erred in claiming that ‘current Florida law already provides for the adjustment of alimony under the proper circumstances.’”
Alimony awards are often permeated with gender bias, a reality chronicled by Richard Crouch, a prominent family lawyer, in the Virginia state bar publication Family Law News. (See Crouch, Support Obligations in Mean Times: The Virginia Courts and the Recession, Fall 1992 Issue.) For example, the Virginia Court of Appeals denied alimony to a father even though his ex-wife made five times what he did, and he was the caregiver for the couple’s children, and instead ordered him to pay his ex-wife 40 percent of his meager disability pension, in Asgari v. Asgari . It is hard to imagine a similarly-situated ex-wife not receiving alimony for at least a few years. For example, in Calvin v. Calvin , the appeals court awarded a wife alimony despite describing her as adulterous, “vindictive and cruel.” As Crouch notes, in Virginia family law, “sex is the difference that makes a difference.” Virginia courts also have shortchanged veterans in divorce cases.
In Florida, gender bias is also common in divorce court. But there, even women have been ordered to pay unfair alimony awards. At Townhall, Rachel Alexander notes that one Florida woman “was ordered to pay lifetime alimony to her ex-husband based on a 14-year-long marriage. Many couples who were only married for 10 years are now in their 20th year of alimony. Some didn’t have any children, or if there are any, they’re often grown.” The bias against breadwinner spouses built into state alimony laws and caselaw is more pronounced than the informal bias against men that exists in its courts.
As a result, female breadwinners, like male breadwinners, can be saddled with unfair lifetime alimony obligations. That makes lifetime alimony a threat to female professionals and business owners, not just males.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.