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05/24/12 It's The Law: Alimony Can Be Modified

Question:

I am divorced and paying my ex-spouse alimony. He claims he needs more money and is going to take me back to court. Can my ex-spouse do that?

Answer:

It's complicated. Section 61.14 of Florida Statutes addresses modification of alimony, but does not tell the whole story. The statute provides that alimony may be modified by the court if the circumstances or financial ability of either party changes. That language mirrors court decisions, but there continues a long string of cases in which the parties argue about whether changed circumstances warrant a change in alimony.

Alimony can take many forms, including property settlement, lump sum; bridge the gap, periodic and permanent. As its name implies, lump sum alimony is generally paid all at once and is therefore not modifiable.

The other types of alimony may usually be modified. Alimony reached by agreement of the parties as part of an overall financial and property settlement is clothed with a presumption of non-modifiability where it can be shown that the amount of alimony was an intricate party of the property settlement. Parties by agreement can waive alimony or waive any right to future modification.

Florida courts have generally held that an award of permanent periodic alimony is subject to modification if a substantial permanent, unanticipated and involuntary change in financial circumstances of one or both parties. That means, one party cannot intentionally reduce his or her income and use that as a basis for modification. [One of the few voluntary actions that is treated as involuntary by the court for alimony modification purposes is retirement at age 65].

The primary consideration in award of alimony at time of divorce is need of one spouse and ability to pay by the other. Need is relative, as it is based largely on maintaining the lifestyle of both spouses as close as possible to that enjoyed during their marriage.

Modification addresses similar issues, although courts have recognized that increase in cost of living, alone, might justify an increase in alimony. Mere increase or decrease in the income of one or both ex-spouses may also warrant modification.

Issues in these cases are fact intensive and can lead to confusing results. The recent case of Silverman v. Silverman is a good example.

At the time of divorce in 1990, Mr. Silverman agreed to pay $7,700 per month in combined alimony and child support. The payment was to reduce as the children reached majority so that the ex-wife would ultimately receive $6,100 per month in alimony. In 2009, the ex-wife filed a petition to increase alimony. She argued her reasonable expenses were no longer met due to an increase in the cost of living. The husband argued that his income had increased but that his ex-wife had not proven a substantial change in circumstance to justify an increase in alimony. The trial judge ruled that increase in cost of living alone justified an increase, and increased alimony based upon evidence concerning the Consumer Price Index.

Both parties appealed. The appellate court pointed out that permanent periodic alimony is to "provide the needs and necessities of life to a former spouse as they have been established by the marriage." It further noted that a divorced spouse is entitled to live in the style established during a long term marriage. The wife argued those standards required an upward modification equal to the increase in the Consumer Price Index.

The appellate court disagreed. The court ruled that the door to requesting increased alimony is only open where the requesting former spouse shows that a modification is warranted in the first place. No such showing had been made in the case. The court ruled that the wife failed to demonstrate a substantial change in circumstances that had not been contemplated at the time of dissolution. Although an increase in the cost of living can qualify a change in circumstances, the court explained reduction in purchasing power of the dollar is insufficient grounds, on its own, to support a modification. There must be a showing that the national problem of inflation specifically impacts the individual claiming inflation as the basis for modification. The court ruled that alimony was to remain at $6,100 per month.

These cases are fact intensive and can be somewhat subjective. Change in income, increased expenses, medical needs and other factors can all be considered by the court. Accordingly, you should retain an experienced attorney without delay to review relevant facts, possible change in circumstances and the impact of applicable Florida case law.

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