Q: I got divorced a while back and was ordered by the Judge to pay my ex-wife alimony. Since my divorce, my ex-wife got a new job and makes a lot of money. She has also been living with a man for a few years and tells me that she will not marry him because it would cut off her alimony. It just does not seem fair. Is there something I can do?
A: Alimony is not set in stone, even if it is originally by agreement of the parties. Alimony can be modified due to changed circumstances of the parties. A substantial increase in earnings of the recipient can reduce need and reduce or eliminate alimony. Reduction in ability to pay of the payor may also be a material change for reducing or eliminating alimony. The courts often view retirement and social security income as important factors in modification proceedings.
You failed to indicate if your income has been reduced. If it has, and the reduction was beyond your control, that alone can reduce your alimony requirement. Since you are focusing on your ex-wife’s side of the equation, my article will address those aspects of your situation.
Reduction in alimony is not automatic. If not voluntarily agreed to by the parties, it can only be ordered by the Judge if you petition the Court for modification. That makes it important to file a petition as soon as possible after circumstances change.
The good news about filing a petition for modification is that the Court may modify the alimony requirement retroactive to the date of filing of the petition to modify. Unfortunately, during the interim, you are required to continue payments. If the modification is retroactive, you may be entitled to a refund from your former spouse, but it might be difficult to obtain that refund if not voluntarily repaid or if your spouse does not have separate assets available to pay you.
Changes in circumstances of the receiving party justifying reduction in alimony can include almost any improvement in that person’s financial position. An inheritance or substantial gift generating income can be considered in modifying alimony. Increase in salary or wages will also be considered.
Accumulation of substantial assets that are not income generating is more problematic. Courts are reluctant to order someone to spend it through capital assets as a form of support. Nevertheless, substantial increase in net worth is hard to ignore as impacting continued need of the alimony recipient.
A few years ago, Florida’s legislature adopted a statutory amendment providing that a Court may reduce or terminate alimony if it finds that since the divorce a supportive relationship exists between the recipient and a person with whom the recipient resides. The alimony payor has the burden of proving a supportive relationship exists and the statute lists 11 factors that must be considered in determining existence of a supportive relationship. Those factors are:
- Extent to which the alimony recipient and the other person have held themselves out as a married couple.
- Period of time that they have resided together.
- Extent to which the couple has pooled assets or income or otherwise exhibited financial interdependence.
- Extent to which the couple has supported each other.
- Extent to which the couple have performed valuable services for each other.
- Extent to which either member of the couple has performed valuable services for the other’s company or employer.
- Whether the couple has worked together to create or enhance anything of value.
- Whether the couple have jointly contributed to purchase of any real or personal property.
- Evidence of any expense, property sharing or support agreement between the couple.
- Evidence of an implied agreement regarding property sharing or support.
- Whether the couple has provided support to the children of one another, regardless of any legal duty to do so.
The Court may consider other factors and evidence in reaching a final decision.
The facts of your particular case are important. You will have the burden of proof, making compilation and presentation of evidence critical. I strongly suggest that you consult with an experienced attorney about the facts and circumstances of your case without further delay, as modification can only be retroactive to date you file a petition to modify.
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.