Articles Posted in Modification Of Alimony

A Modification of Alimony case involving a former husband’s retirement was recently decided by the Florida Court of Appeal in a case captioned Befanis v. Befanis. In this case, a physician filed a Supplemental Petition for Modification of Alimony. The parties were divorced in 2010. At the time of the dissolution of marriage, the former husband was a successful ophthalmologist and owned his own practice. Five years after the divorce was granted, the former husband filed a Supplemental Petition for Modification of Alimony based upon the fact that he sold his business, was working as a salaried employee, and sustained a substantial decrease in his income. In his Supplemental Petition, the former husband also stated that he was preparing to retire, as he was almost 65 years of age. The former husband and former wife signed an agreed final judgment that reduced the former husband’s alimony obligation.

Sixteen months later, the former husband filed a second Supplemental Petition for Modification seeking another reduction in his alimony. The basis for the former husband’s second Supplemental Petition was that his employment contract ended and he retired.

The Florida Court of Appeal ruled that a party may obtain a modification of alimony when there is a change in the circumstances or the financial ability of the parties. A party seeking modification must prove three elements. First, there must be a substantial change in circumstances. Second, the change in circumstances must not have contemplated when the initial alimony obligation was decided. Third, the change in circumstances must be material, sufficient, permanent, and involuntary.

A Modification of Alimony case was recently decided by the Florida Court of Appeal in a case captioned Judy v. Judy. In this case the Former Husband sought modification of his alimony obligation. The amount of Former Wife’s alimony was previously agreed to in a Marital Settlement Agreement. The Former Husband and Former Wife were married for 26 years. The Former Husband was the primary wage earner, and the Former Wife stayed home to raise the parties’ two children. Prior to the Final Hearing, the parties entered into a Marital Settlement Agreement. The Marital Settlement Agreement stated that the Former Husband would pay 8 years of durational alimony to the Former Wife. The Marital Settlement Agreement also stated that the Former Husband’s involuntary loss of employment would be considered to be a substantial change of circumstances for purposes of modification of alimony. By the time that the Final Hearing took place, the Former Husband was involuntarily unemployed. The trial court enforced the Marital Settlement Agreement, however, it permitted the Former Husband to institute an action for modification of alimony. Former Husband brought an action for modification of alimony. However, Former Husband dismissed this claim when he found employment. Five years later, Former Husband again became unemployed and brought this action for modification. Although Former Husband regained employment, he pursued his claim for modification of alimony based upon the fact that his current income was less than it was at the time of the Final Hearing and because the Former Wife had not obtained employment subsequent to the entry of the Final Judgment.

A General Magistrate granted Former Husband’s Supplemental Petition for Modification of Alimony based upon imputation of minimum wage income to the Former Wife. The General Magistrate found that the Former Wife had made no attempt to obtain employment after the divorce, and found that it was therefore appropriate to impute income to her. The Trial Court adopted the General Magistrate’s recommendations.

The Florida Court of Appeal reversed the Trial Court’ ruling and held that it erred in imputing income to the Former Wife. The Florida Court of Appeal pointed out that in imputing income to a payor, the trial court is required to ascertain the payee’s occupational qualifications, their work history and the current job market in the area where the parties live. However, since the terms of the parties’ Marital Settlement Agreement: (i) did not require the Former Wife to obtain employment, (ii) stated that the terms of the alimony obligation were non-modifiable, and (iii) did not indicate that the parties intended to impute income to the Former Wife if she did not become employed, the Florida Court of Appeal refused to impute income to the Former Wife and denied the Former Husband’s Supplemental Petition for Modification of Alimony.

Modification of Alimony should be granted retroactively to the date the petition was filed if the reasons justifying modification existed at that time. In a case captioned Nuttle v. Nuttle the former husband appealed a final judgment modifying his alimony obligation. The Florida Court of Appeal reversed the trial court’s decision and remanded the case back to the trial court to correctly modify the former husband’s alimony. In 2015, the parties entered into a marital settlement agreement under which the former husband agreed to pay his former wife durational alimony. Before the trial court signed the final judgment, the former husband filed a supplemental petition for modification of alimony based on the fact that the former husband was notified by his employer that he was going to be terminated from his employment. Eleven months after the parties entered into the marital settlement agreement, the trial court entered a final judgment that incorporated the terms of the marital settlement agreement and reserved jurisdiction to hear the former husband’s modification of alimony. The former husband then filed an amended supplemental petition for modification of alimony.

The trial court only granted the former husband’s supplemental petition for modification of alimony back to the date on which the former husband filed the amended supplemental petition for modification of alimony, rather than the date on which the former husband filed the original supplemental petition for modification of alimony. The Florida Court of Appeal reversed stating that modifications of alimony should be granted retroactively to the date of the filing of the original supplemental petition for modification of alimony if the need for the alimony reduction existed at the time of the filing of the original supplemental petition for modification of alimony. Under Florida law, a court may increase or decrease alimony retroactive to the date of the filing of the supplemental petition for modification when it is equitable to do so in light of changed circumstances or a changes in a parties’ financial ability to pay alimony. Where a payor’s need for a reduction in the amount of alimony he pays exists at the time he filed his original petition for modification of alimony, then his alimony should be retroactively reduced as of the date of the filing of the supplemental petition.

To speak with a divorce attorney in Palm Beach County, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

A modification of alimony based upon a party’s retirement may be granted when the trial court finds that the party’s retirement is reasonable. In determining whether a party’s retirement is reasonable, a Court will look at the parties’ age, health, and motivation for retiring. In determining whether a reduction in alimony based upon a party’s retirement will be permitted, the trial court will also examine the type of work that the paying party performs and the age at which others in that line of work customarily retire.

In a recently decided case captioned Dogoda v. Dogoda, the husband appealed an order denying his petition to modify his alimony obligation. The parties married in 1991. The husband filed for divorce in 2013. The parties entered into a marital settlement agreement that resolved all of their issues. The agreement was executed in September of 2014, and was not incorporated into a Final Judgment of Dissolution until December of 2014. Due to his poor performance in physical fitness drills that took place after September of 2014, the Husband decided to retire in January of 2015. The Husband then petitioned for a modification of his alimony obligation. The lower court held that the Husband’s retirement was contemplated prior to the final judgment being entered. The Florida Court of Appeal reversed the trial court’s decision.

The Florida Court of Appeals held that a modification of alimony may be granted in Florida when the parties enter into a marital settlement agreement pertaining to the payment of alimony and the financial ability of either of the parties changes. The petitioner must show that there was a substantial change of circumstances, that the change was not contemplated at the time of the final judgment, and that change is material, permanent, sufficient and involuntary. A party’s retirement may warrant a modification of alimony payments. However, a modification of alimony cannot be based on factors known to the parties when the final judgment was entered. In cases that involve marital settlement agreements, the effective date of the marital settlement agreement establishes the date to which a trial court should look in determining whether a substantial change in circumstances was contemplated by the parties. In this case, the Florida Court of Appeal found that the former husband’s retirement was not contemplated at the time that the marital settlement was entered into and reversed the trial court’s order denying the Former Husband’s supplemental petition for modification of alimony. The case was then remanded to the trial court.

A modification of alimony is permitted by the Florida Statutes. In a recently decided case captioned Kallett v. Kastriner, the Florida Court of Appeal stated that the right to apply for a modification of alimony may only be waived in an agreement if the language in the contract contains a waiver that is clear and unambiguous, or if the agreement is written in a manner that can lead to no other conclusion but that the parties intended there to be a waiver of this right.

In this case, the Husband and Wife were divorced in 2006. The lower court ordered the Husband to pay permanent alimony to his wife. In 2008, the husband and wife entered into an agreement in which they agreed to reduce the Husband’s alimony by $500.00 per month due to the diminution of his income. The lower court approved this agreement. In 2014, the Husband sought another reduction in his alimony. The Wife opposed this reduction unless the Husband was involuntarily unemployed. The Wife argued that the 2008 agreement contained a provision that said that the Husband could only reduce his alimony obligation if he was involuntarily unemployed. The Wife argued that since the Husband was not involuntarily unemployed, he was not entitled to seek a modification. The trial court agreed with the Wife’s construction of this provision and granted the Wife’s Motion for Summary Judgment against the Husband.

In Kallett v. Kastriner, the Florida Court of Appeal stated that unless a party expresses a clear and unambiguous intent to waive his or her right to obtain a modification of alimony, a court cannot find that a party has waived this statutory right. A supplemental petition for modification of alimony should only be denied when the agreement provides an irrevocable and unambiguous waiver of the right to seek a future modification. In this case the agreement stated that the Husband could seek a reduction of his alimony obligation if he was involuntarily unemployed. However, it was unclear as to what period of time this agreement applied. Therefore the Court found that there was no irrevocable and unambiguous intention expressed in the agreement to waive all future modifications.

In a modification of alimony case, a parties’ retirement does not mandate the termination of alimony payments. Retirement just provides an opportunity to revisit alimony recipient’s needs and alimony payor’s ability to pay. In a case captioned Purin v. Purin the Florida Court of Appeal had a case before it involving a thirty-year marriage. A thirty-year marriage is considered to be a long term marriage. The trial court awarded durational alimony instead of permanent alimony. The Court of appeal reversed this award. The trial court refused the wife’s request for permanent alimony and awarded her durational alimony based on the fact that the husband was going to retire at age sixty-five. The Court of Appeal stated that the starting point in every alimony determination is need and ability to pay. In this case the wife demonstrated her need and the husband’s ability to pay. However the trial court refused to award permanent periodic alimony based upon the fact that the husband was going to retire in ten years. The Court of Appeal said that the trial court should not have speculated as to what the parties’ needs and ability to pay were going to be in ten years. The Court stated that trial courts are not permitted to consider future events in setting current alimony due to the uncertainty surrounding the future. The appellate court pointed out that a payor’s retirement does not require the termination of an award of alimony. A parties’ retirement just allows a trial court to look at the parties’ then current ability to pay and their needs.

The Court of Appeal also pointed out that in a modification of alimony case, durational alimony may be extended in exceptional circumstances where there is a need for continued alimony. The Court of Appeal reversed the lower courts finding that the wife could not obtain an extension of her durational alimony award.

If you have questions to ask a divorce attorney in Wellington, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

The parties married in 1970 and were divorced in 2004. When the divorce was granted the husband had a good job in Louisiana. The court awarded alimony payments which were approximately thirty-five percent of this gross income. When he was over sixty years of age, the husband became unemployed. He looked for a job without success until January 2012. The husband accepted a job in Naples, Florida, where the compensation was commission based. He experienced a reduction in his income which was more than fifty percent of what he earned at the time of his divorce. At the time of the modification hearing, the payments for alimony and life insurance exceeded seventy percent of the husband’s monthly income. The Court of Appeal stated that the party requesting a modification must present evidence necessary for the lower court to make the determinations that are essential for relief.

The trial court needs to make factual determinations about the nature and extent of the change in financial circumstances. It needs to make a factual decision about whether the change was anticipated at the time of the final judgment. Finally the court needs to decide whether the change is substantial and whether the change was sufficient, material, permanent, and involuntary. A severe reduction in income for nearly a year, with no end in sight is considered to be permanent for purposes of granting a modification.

If you have questions about modification of alimony in Jupiter, Florida, contact at Matthew Lane & Associates, P.A. at (561) 363-3400.

A Petition for alimony or termination of alimony may be filed by an alimony obligor based upon his or her actual retirement, under the new alimony reform bill that was recently introduced in the Florida House of Representatives.  In order for there to be a termination or modification of alimony, the following circumstances must occur: (i) the paying spouse must have reached the age for eligibility to receive full Social Security retirement benefits and have retired, or (ii) the paying spouse must have reached the customary age for retirement for his or her occupation and must have retired from that occupation.

If an alimony obligor voluntarily retires before reaching either of the ages described above, the court shall determine whether the obligor’s retirement is reasonable based upon a consideration of the obligor’s: (i) age, (ii) health, (iii) motivation for retirement, and (iv) the financial impact on the alimony recipient. Upon a finding that the payor’s retirement is reasonable, there is a rebuttable presumption that an existing alimony obligation shall be modified or terminated.

The court shall modify or terminate the alimony obligation, or make a determination regarding whether the rebuttable presumption has been overcome, based upon the following factors that currently apply to the parties: (i) the age of the parties, (ii) the health of the parties, (iii) the assets and liabilities of the parties, (iv) the earned or imputed income of the parties, (v) the ability of the parties to maintain part-time or full-time employment, and (iv) any other factors that the court considers to be relevant.

The modification of alimony as a result of cohabitation and the entry into a supportive relationship was recently addressed as part of the Florida Alimony Reform Legislation that was introduced in the 2015 session of the Florida House of Representatives.

Under the proposed legislation, the court may reduce alimony or terminate alimony when: (i) a supportive relationship exists or has existed after the entry of the final judgment of divorce and (ii) a supportive relationship exists or has existed in the year preceding the filing of the request for the modification of alimony or termination of support.

The trial court is directed to utilize the following factors to determine whether cohabitation or the entry into a supportive relationship warrants a modification or termination of alimony: (i) whether the parties have held themselves out as a married couple by using the same last name, using a common mailing address, referring to each other by terms such as my husband or my wife, or otherwise conducting themselves in a manner that evidences a permanent supportive relationship; (ii) the duration of time that the parties have resided together; (iii) whether the parties have pooled their income or assets; (iv) whether one party has supported the other; (v) whether one party has performed valuable services for the other; (vi) whether one party has performed valuable services for the other parties’ employer or company; (vii) whether the parties have worked together to create or enhance anything of value; (viii) whether the parties both contributed to the purchase of property; (ix) whether the parties have an express agreement regarding property sharing and support; (x) whether the parties have an implied agreement regarding property sharing and support; (xi) whether the parties have provided support to each other’s children; (xii) whether the paying spouse failed to complied with his/her court ordered obligations and whether this failure was a significant factor in the establishment of the supportive relationship; and (xiii) the extent to which the recipient spouse provides caretaking to a close relative with whom the recipient spouse resides or receives caretaking from a close relative with whom the recipient resides.

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