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 an alimony modification 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.
In Befanis v. Befanis, the Florida Court of Appeal ruled that although the parties anticipated the former husband’s retirement at the time that they entered into the first modification, they did not anticipate the change in the amount of the former husband’s income. At the time that the first modification was awarded, the change in the former husband’s income was substantially less than the change in the former husband’s income at the time that the second modification was requested. Additionally, the agreed upon modification order did not discuss the basis for the modified alimony amount. Therefore, the Court of Appeal found that there was no evidence that the parties took into account the amount of the former husband’s retirement income when they agreed to the first reduction in the former husband’s alimony.