Five Questions on this year’s alimony bill with Philip Wartenberg

It’s become a habit of late: There always seems to be room in a Florida legislative session for an alimony overhaul. This year’s effort was filed by state Sen. Joe Gruters, a Sarasota Republican, who carried last year’s bill that made it all the way to Gov. Ron DeSantis’ desk before being vetoed. 

That was the third veto of alimony-related legislation in the last decade; then-Gov. Rick Scott vetoed two previous attempts. The 23-page bill for 2023 (SB 1416) gets its first hearing today in a Senate committee. 

The bill and its House companion would, among other things, delete a provision in state law for what’s called “permanent alimony,” and would also allow an end to or reduction in payments if the ex-spouse writing the checks retires. Most if not all of those provisions have been in previous bills. 

DeSantis’ objections last year were that if that bill “were to become law and be given retroactive effect as the Legislature intends, it would unconstitutionally impair vested rights under certain preexisting marital settlement agreements.” 

City & State recently spoke with Philip S. Wartenberg, chair of The Florida Bar’s Family Law Section and a general magistrate in Tampa’s 13th Judicial Circuit. (Magistrates are defined as “quasi-judicial officers [who] conduct formal court hearings to assist in the caseload of a division.”) 

He worked with lawmakers to make sure this year’s proposal would meet muster – though, unsurprisingly, not everyone is happy. As The News Service of Florida’s Dara Kam reported this week, “left out of the mix are the ‘First Wives,’ a group of mostly older women who have traveled to the state Capitol year after year to plead with Republican leaders to leave existing alimony agreements off the chopping block.”

With that, we asked Five Questions of Wartenberg, who took over as section chair last year. As usual, questions and answers have been edited for clarity and brevity. 

You worked with the bill sponsors to make sure it wasn’t retroactive. Do you now support it?

We're in support of this legislation because it will put to bed what we know to be the concerns of the reform groups who have been very vocal since the last round of changes to the alimony laws in 2010 and 2011. In other words, as of last year, we were on board with the bill to the extent that it got rid of the long-standing concept of "permanent alimony." And we believe that that has been just a poor way to describe what long-term alimony really is, which is a form of alimony that is always modifiable unless parties agree otherwise. Longstanding (state) Supreme Court precedent … recognizes an alimony payer's ability to retire at what is considered a normal retirement age for his or her profession and have that be a basis for modifying or terminating even a long-term alimony award. And on that particular note, that's what last year's bill did not do. We wanted that (precedent) to effectively be codified into law so that there was no question on what the standard is for modifying alimony based on a payer's retirement.

Does the Family Law Section oppose what is commonly referred to as “permanent alimony?”

We don't oppose it. We are open to the idea of changing the alimony laws so you don't have the word “permanent” in the statute and making long-term alimony “durational” in nature versus “permanent” … because permanent was never really permanent. There was always an ability for a court to modify it. With “durational” now being proposed as the longest form of alimony, the concern of the section then becomes making sure we have what we call safety-valve language that would protect those who truly need something that is akin to what we now call permanent alimony. In other words the duration ... of an award of alimony will be able to be extended ... but a court would have the ability to extend … based on certain specific criteria that will protect those who truly need that protection and financial assistance.

It seems the conflict has always been between alimony payers who felt like they were going through the ringer by having to pay the same amount of alimony even after they retired and alimony recipients who felt like the amount agreed upon was their right. As a family law section chair, how difficult is it to walk the line?

It's our job to be true to our mission, which is protecting Florida's families. And that means all members within a family. Those of us in this profession are dealing with that balance, especially now that I'm on the bench as a magistrate. I'm having to make those calls pretty much daily ... We just want to ensure as best as possible that the laws, the longstanding laws regarding alimony, are not changed so as to become too one-sided. We are trying to make sure that the statutes do not limit what a judge can do with respect to these difficult cases that come in front of them.

Does this current legislation solve a problem that needs to be fixed?

Yes. One of the biggest complaints regarding the current alimony laws is the lack of predictability and certainty with respect to what a judge may do on a particular case. And this law provides much needed clarification. It helps to make alimony determinations more certain and more predictable so that the result you get with one judge is going to be much more similar to what you could expect another judge in the same courthouse or in another courthouse in the state of Florida to render.

… We want to make alimony determinations something that, again, are more predictable and are more certain, given a set of facts. Now, at the same time, we are insisting on maintaining judicial discretion with these outcomes. That was a very important part of what we were advocating for last year, which we believe we've accomplished in this year's product, making sure that a judge will continue to have the discretion of entering alimony awards that are fair to both parties in a divorce proceeding. And not just that, but also that they continue to have meaningful discretion pursuant to specific criteria ... with regard to the modification of alimony, including when a payer hits his or her normal retirement age.

Do you think we'll see more alimony legislation even if this bill passes?

Well, we are hopeful that this will finally put to rest years of lobbying by many different interests as far as changes that should be made to our alimony laws. And we are hopeful that this legislation gets us to a place where we have something that will not need to be revisited for a long time.