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.
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.
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 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.
A modification of alimony may be granted where: (a) there has been a substantial change in circumstances, (b) the change was not contemplated at the time of the final judgment granting a divorce, and (3) the change is sufficient, material, permanent, and involuntary. In Jarrard v. Jarrard, the Florida Court of Appeal reversed a trial court decision in which the lower court denied the husband's Supplemental Petition for Modification of Alimony. The appellate court reversed the lower court's ruling because they found that the husband had met his burden to establish a sufficient, material, permanent and involuntary substantial change of circumstances that was not contemplated at the time of the final judgment granting the divorce.
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.
To obtain a modification of alimony, the party seeking the change must prove that there is a substantial change in circumstances, that was not contemplated at the time of the final judgment, that is sufficient, material, involuntary, and permanent in nature. In Albu v. Albu the Florida Court of Appeal recently stated that: "In this appeal, the former husband argues that the alimony should have been terminated rather than reduced, because his income...did not meet his expenses...
In a modification of alimony proceeding, where the marital settlement agreement indicates that alimony is not modifiable, except under certain circumstances, absent the occurrence of those described circumstance, alimony will be non modifiable. In Elbaum v. Elbaum, the Florida Court of Appeal recently stated: "Robert Elbaum appeals from a final order dismissing with prejudice his petition to terminate or modify his alimony obligations. We affirm because the marital settlement agreement unambiguously limited the ability to modify alimony to specific situations not raised in the petition...[T]his case is nearly identical to that confronted in Smith v. Smith, 110 So. 3d 108 (Fla. 4th DCA 2013). In Smith, the parties' marital settlement agreement provided: