WHAT IS THE AGE OF RETIREMENT FOR PURPOSES OF ALIMONY IN FLORIDA?

In an alimony case captioned Tanner v. Tanner, the Florida Court of Appeal recently ruled that in order to determine whether a payor’s voluntary retirement is reasonable, a trial court is required to consider the payor’s age, health, reason for retiring, type of work, and the age at which others who perform the same type of work normally retire.

In Tanner v. Tanner, the Husband appealed the trial court’s order denying his petition for modification of his divorce decree. The parties were divorced in January 2016. The final judgment of dissolution required the Husband to pay permanent periodic alimony to the Wife. In September 2018, the Husband filed a petition to modify the divorce decree in which he sought to eliminate or reduce the amount of his alimony payments.

In the Husband’s supplemental petition for modification of alimony, the Husband stated that his employer terminated his employment, and that his medical condition precluded him from finding similar employment.  The trial court denied the Husband’s petition for modification of alimony based upon the fact that it found the Husband’s retirement at age 64 to be unreasonable. In his appeal, the Husband argued that his retirement was reasonable based on his age and his failing health.

The Florida Court of Appeal ruled that in order to grant a modification of alimony, there must be a substantial, material, involuntary and permanent change of circumstances that was not contemplated at the time that the final judgment of dissolution of marriage was entered. Retirement can constitute a substantial change of circumstances. In order to determine whether a voluntary retirement is reasonable, a trial court is required to consider the age of the payor, the payor’s health, and the payor’s motivation for retirement. Additionally, the trial court is required to consider the type of work that is performed by the payor and the age at which other people who are engaged in the same type of work normally retire.  A payor will not be permitted to reduce the amount of the alimony payments based upon a voluntary retirement when it would place the recipient in peril of poverty.  In ruling on a petition for modification of alimony, a trial court is required to look at the needs of the recipient and the effect a reduction or termination of alimony will have on the recipient. In making this determination, a trial court should consider the assets that the recipient has accumulated after the entry of the final judgment of dissolution of marriage and the income that is generated from these assets.

In the case at bar, the Husband retired six months before he turned sixty-five, when his employer notified him that he would not be rehired. The Husband was unable to perform the duties that he performed for forty years as an instrument technician. His job requires manual labor, and his physical condition rendered him unable to perform this work because he suffers from diabetes, COPD, and multiple sclerosis.

The Florida Court of Appeal ruled that the Husband’s retirement was reasonable because of his age, his health issues, and the type of work that the Husband performed. The Court stated that age sixty-five is the presumptive age of retirement in Florida. In this case, the Husband was six months shy of the sixty-five-year-old presumptive age of retirement, and the Husband presented evidence that he could not perform the work that he performed for the last for forty years.

Accordingly, the Florida Court of Appeal reversed the trial court’s order and ruled that the Husband’s supplemental petition for modification of alimony should be granted retroactive to the date on which the Husband’s petition for modification of alimony was filed. The Court stated that when modifications of alimony are granted, they should be granted retroactively.

To speak with a Palm Beach Gardens divorce attorney to discuss alimony in Florida, contact the Lane Law Firm, P.A. at (561) 363-3400.

 

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