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07/17/14 It's the Law: The Alimony Can Be Modified

It's The Law

The Alimony Can Be Modified

(07/17/14)

Question:

I got divorced 10 years ago. Since then, my income has dropped and my former spouse has done quite well. As part of our settlement, I agreed to pay alimony. I have suggested reducing the amount I pay and my former spouse claims that cannot be done because our agreement termed the alimony permanent periodic. Is she right?

Answer:

Permanent periodic alimony is alimony paid until the recipient dies or remarries or the payor dies. Other types of alimony includes rehabilitative, lump-sum, bridge-the-gap and durational. If alimony is determined by the court (as opposed to agreement of the parties), it must consider specific statutory factors, which include need, ability to pay, standard of living during the marriage, ages of the parties and their physical and emotional health. Any form of alimony that is payable over time is subject to possible modification.

Section 61.14 of Florida Statutes addresses modification of alimony. It provides than when the parties enter agreement for alimony or when a party is required to pay court determined alimony and the circumstances or the financial ability of either party changes, either party may apply to the court for an order of modification. Florida case law makes it clear that the statutory right to modify alimony is incorporated into every agreement or judgment providing for alimony, unless it is specifically waived.

A threshold for alimony modification is to establish a change in circumstances which was not anticipated at time of the agreement or judgment and the change is permanent, material and involuntary. In determining whether to reduce alimony, the court considers more than reduction in the payor's income or increase in the recipient's income. It also compares the parties' relative financial circumstances at time of divorce with their position at time of the requested modification. The court looks closely to see if voluntary action of a party has contributed to the change. Arranging finances or employment to limit ability to pay will not justify reduction. Significant salary reduction or loss of employment can justify reduction, as long as the payor is actively looking to replace the lost income.

There are exceptions to the voluntary reduction in income rule. Where a payor has a temporary reduction in income to complete education for career enhancement, courts have held that is not a voluntary reduction in income. The courts consider the payor's pursuit of education as an effort to improve economic position in good faith and have agreed to reduce the alimony obligation during that period.

Retirement can be the basis for alimony reduction, but the court looks at all circumstances. Early retirement, without medical reason, is generally not sufficient to reduce alimony. Even when retirement is at age 65 or older, the court still investigates to determine if retirement is reasonable under the circumstances

The court also must determine if alimony is truly for support or was part of property settlement. Title of the agreement or wording of the provision is not controlling. The court looks to the circumstances and the effect of payment to determine whether it is to provide support or property settlement. If it is property settlement, it is generally not modifiable.

Alimony may also be modified if the recipient enters a supportive relationship with someone, even without marriage. That is a relatively recent statutory amendment to address alimony recipient who lives with someone without marriage, to help the alimony continuing.

Florida statutes make no distinction between modifications of alimony awarded by a court or by agreement. Nevertheless, Florida courts apply a heavier burden to modify alimony set by agreement. The burden becomes almost insurmountable when the agreement states that alimony is not modifiable. That was what the court decided in the recent case of Elbaum v. Elbaum.

In Elbaum, the parties agreement on alimony stated the alimony would be non-modifiable "except in the event of an unforeseen circumstance involving the business of the husband or the health of the husband affecting his ability to work, and only in the event the husband receives no business income as a result of unforeseen circumstances or the health of the husband." The former husband filed a petition to modify alimony on ground that his former wife's needs had decreased because she was in a supportive relationship. She was cohabitating and commingling assets with her partner for at least two years. The court denied his request.

The court noted that parties are free to waive the statutory right to seek modification of alimony in a settlement agreement if the agreement clearly and unambiguously establishes waiver or if interpretation of the entire agreement can lead to no other conclusion. Mr. Elbaum waived his right to modify alimony for any reason other than the limited circumstances provided in his agreement. Those circumstances did not include the former wife entering a supportive relationship.

Alimony modification can be complex. Circumstances at time the alimony was established are important. Change in those circumstances is required and the courts will review all aspects to determine if the alimony is even eligible for modification as a preliminary issue. A good attorney in this case is essential.

By: William G. Morris, Esquire

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.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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