Florida law allows you to lower what you pay in alimony each month, increase your alimony payments, or terminate alimony payments altogether. A recent Florida case is an interesting example why alimony modification is a hot issue.

Alimony modification

Florida Alimony Modification

There are a few reasons why alimony can be modified. Dramatic changes in health, inability to go back to work (due to disability, injury, etc.), substantial raise in pay, big gifts or lottery winnings, loss of job, and of course, retirement are the major forces behind alimony modification.

I’ve written about alimony modification before. In Florida, to modify alimony, the payor has to show three fundamental things: a substantial change in circumstances, the change was not contemplated at the time of the final judgment of dissolution, and that the change is sufficient, material, involuntary and permanent in nature.

The Supreme Court of Florida has addressed the impact of retirement on support obligations in Florida. To determine whether a voluntary retirement is reasonable, courts must consider, in part, the payor’s age, health, and motivation for retirement, the type of work, and the age at which others engaged in that line of work normally retire.

In Florida there’s been a debate about whether these reasons for modifying alimony have to be “unanticipated” or can they be reasons everyone knew about. That dispute was recently settled here.

Retirement Accounts

In a recent Florida case, the trial judge and the spouses did not take into consideration the eventual income that the former wife would receive from her retirement and annuity accounts without penalty, once she reached retirement age when they drafted their settlement agreement more than 10 years ago.

Her former husband asked the court for an alimony modification – even though he had not retired and had the ability to pay the required alimony – because the former wife’s retirement accounts had appreciated, and she had reached the age of 59 ½, so she could take distributions without penalty.

The family court judge agreed to grant an alimony modification, and the former wife appealed. The former wife argued that her ability to access the retirement accounts without penalty was not an unanticipated change in circumstances, and alimony may not be modified in Florida for anticipated changes in circumstances.

The appellate court, agreed with the former husband, and sustained the alimony modification. Given that their agreement was silent as to what would happen once the former wife could access the funds in retirement accounts, the retirement accounts had not been taken into consideration to determine the former wife’s income.

The appellate decision is here.

 

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