Roommate or Romantic Partner?
Mon. June 3, 2019 \ by Lauren M. Ilvento, Esq., and Erin F. Duncan, Esq.\ Articles, News
Family Law Committee // “Roommate or Romantic Partner?” by Lauren M. Ilvento, Esq., and Erin F. Duncan, Esq. // The Briefs, June 2019 Vol. 87 No. 5. //
Though one may assume a spouse’s new relationship is irrelevant to divorce, in family law cases, these relationships often must be analyzed prior to the entry of a final judgment of dissolution of marriage. Specifically, when alimony is at issue in a dissolution of marriage action, the recipient’s need for alimony must be established. This requires analysis of a spouse’s new significant other. In cases that resolve prior to trial, it is incumbent upon the attorneys to include these threshold findings to prevent injustice to the parties – injustice that may not be immediately evident to the parties involved.
Prior to the enactment of the statutory provisions related to supportive relationships, courts recognized that such relationships could justify the reduction of an alimony award, as the nature of a supportive relationship would reduce the recipient’s need for alimony.1 In 2005, the Florida legislature enacted a statute, codified at §61.14(1) (b), Florida Statutes, which permits an alimony payor to seek a reduction or termination of alimony paid to a recipient who has entered into a “supportive relationship.” The statute lists 11 factors to be analyzed in determining whether an alimony recipient’s relationship would be deemed “supportive.” The circuits are currently split on the issue as to whether a finding of a supportive relationship requires a decrease or termination of alimony, or whether such a finding only meets the threshold of a “substantial change in circumstances,” at which point a court may consider whether the recipient’s need for alimony is changed.2
In determining whether a supportive relationship exists, the trial court must not limit its focus on the financial support that one of the couple may be providing to the other; the court must also analyze all aspects of the relationship, including the social and emotional, as well as “non-economic” services provided by the couple to one other.3 Once a trial court analyzes all of the financial, social, economic, and other aspects of the relationship, it then determines whether or not the relationship is supportive. The next step is to compare the relationship at issue to a hypothetical “roommate” or non-romantic, non-supportive relationship, to determine whether it is supportive as defined by the statute.4 Case law currently holds that if a supportive relationship existed between a spouse and a paramour at the time of the entry of the final judgment, that relationship cannot later be used as a basis to modify alimony.5 Thus, if an alimony recipient enters into the supportive relationship prior to the entry of the final judgment and the trial court does not consider evidence related to the supportive relationship at trial or make the related findings as to the recipient’s need in light of a supportive relationship, an alimony payer will effectively be denied relief intended to be available by statute. The King case does support the proposition that a change in the amount of the contribution made by the cohabitant to the alimony recipient may result in a substantial change in circumstances, which would in turn allow the payor to see a reduction or termination in alimony.6 However, if the trial court fails to make specific findings of fact as to the existence of the supportive relationship and its nature and extent in terms of its financial, social, and emotional support, including non-economic services, in the final judgment, the alimony payor may never be able to establish a change in circumstances, and the recipient will be able to evade the statute altogether. This would lead to the type of inequitable results the statute seeks to avoid.
The First District Court of Appeal has recognized that the issue of a supportive relationship that arises prior to the entry of the final judgment can be considered by the trial court in determining alimony but thus far only with respect to the financial aspect of the alleged supportive relationship.7 To date, no court of appeal has grappled with the issue of how a supportive relationship existing prior to a marriage being dissolved should be weighed by the trial court in determining alimony. As a result, there is an important gap in the case law.
If courts are to do equity among the parties, as contemplated by the current law, the existence and impact of a supportive relationship must be part of the consideration of the trial court in determining whether there is a need for alimony, the amount of an alimony award, and the duration of the award. Then those considerations must be reduced to writing and included as part of the requisite findings in support of any alimony award. To do otherwise allows the outcome of a case to be driven by a party’s ability to delay trial until after he/she is able to enter into a supportive relationship, leaving a spouse with the risk of being ordered to indirectly subsidize the standard of living of an ex-spouse’s paramour.
Lauren M. Ilvento, Esq., Ilvento Law, P.A., is board certified in Marital and Family Law and has been practicing since 1995. She is especially experienced in cases that involve international, jurisdictional, and business issues. She has been a member of the OCBA since 2004.
Erin F. Duncan, Esq., The Orlando Law Group, P.L., is the chair of the Family Law Section of the OCBA. She has practiced family law since 2008 and has been a member of the OCBA since 2006.
- Buxton v. Buxton, 963 So.2d 950, 951 (Fla. 2d DCA 2007).
- See Murphy v. Murphy, 201 So.3d 18, 25 – 26 (Fla. 3d DCA 2013).
- See Murphy v. Murphy, 201 So.3d 18 (Fla. 3d DCA 2013); Gregory v. Gregory, 128 So.3d 926 (Fla. 5th DCA 2013); Buxton v. Buxton, 963 So.2d 950 (Fla. 2d DCA 2007).
- See, e.g., Atkinson v. Atkinson, 157 So.3d 473, 476–77 (Fla. 2d DCA 2015).
- See King v. King, 82 So.3d 1124 (Fla. 2d DCA 2012).
- See Keyser v. Keyser, 204 So.3d 159 (Fla. 1st DCA 2016).