Modification of Alimony

Quick Info: Can I modify my alimony?

Alimony in Florida is normally modifiable in amount and sometimes duration. That can change according to the specific type of alimony that was awarded. Alimony is never modifiable if the original judgment did not grant alimony. Some agreements may specify “non-modifiable” alimony.  That changes the alimony to something that cannot be changed at any time.  There are certain conditions that must be met for a modification of alimony – such as large changes in income.

Alimony laws in Florida are some of the most progressive in the country. As long as alimony was awarded in the original divorce decree, Section 61.14 of the Florida Statutes provides that most types of alimony may be modified or terminated when there has been an unexpected, involuntary, and substantial change in circumstances that affects the former spouse’s ability to pay, or the other former spouse’s need for alimony. The real question and the cause of many court battles is exactly what that statement means.

When there is No Alimony in the Original Award

If no alimony is awarded at the time of divorce, the court has nothing to modify. In Florida, if the original case closes out without any alimony award, you cannot go back and modify the judgment to get alimony. The technical reason is that the court lacks jurisdiction over “alimony” once the no-alimony order is signed. This is an absolute rule – with no way to get around it. If you close your original case without alimony – there will never be alimony. One way to get around this rule is by incorporating “nominal alimony” in the original award. This is an important concept for people seeking alimony and should be looked at extremely seriously by ex-spouses on the other end of things. Nominal Alimony is a concept known to attorneys and judges and is used in situations where there is a strong claim for alimony and absolutely no way for the other person to pay alimony. In those situations, the court may award “nominal alimony” in the amount of $1 per month – or some other low amount. Nominal alimony keeps the “alimony door” cracked slightly open forever and prevents the zero-alimony rule mentioned above from preventing later modification. If someone has nominal alimony in their judgment then future modifications are possible.

When there is an Alimony Judgment and You Want to Modify Alimony

Before you can file for a modification of alimony in Florida you must qualify by having a “Substantial Change in Circumstances.” If you do not satisfy that requirement you cannot open a modification case. A “substantial change in circumstances” means a change that was unanticipated at the time the alimony was ordered by the court. The change must be permanent, involuntary, and material (more terms to define and argue over).

Examples of substantial changes may include, but are not limited to the following:

• Health issues
• Long-term unemployment
• Gifts
• Large raise
• Substantial inheritance
• Lottery winnings
• Availability of medical insurance
• Payer’s long-term involuntary decreased ability to pay
• Retirement by the payor
• Voluntary changes in circumstances that are smart and well-thought-out decisions
• Payee gets remarried
• Payee fraud in obtaining alimony

The following factors and situations generally will not justify a modification of Florida alimony:

• Expenses of a second marriage
• Moderate showing of the improvement in the payee’s economic situation
• Award of lump sum alimony or bridge-the-gap alimony
• Marital settlement agreements that specifically waive the right to modify alimony
• Voluntarily quitting your job
• Getting purposely fired

The court has the discretion to modify an order of support, maintenance, or alimony, retroactively to the date of the original filing of the action, or supplemental action for modification. Please note, a judge will only reduce or terminate alimony if properly requested by Supplemental Petition to Modify Alimony, and granted in a Final Order for Modification. If you just stop paying alimony, you may face sanctions, such as paying the former spouse’s attorney’s fees, having your driver’s license suspended, or possibly even spending some time in jail. That is why it is really important to file for modification the second your circumstances change.

Cohabitation Law

Florida has a “supportive relationship” law (Cohabitation) that ends permanent alimony in the event of the payee’s lack of continued need for alimony because of the payee’s new supportive relationship. Because of the ambiguity in what constitutes a “supportive relationship” and who may constitute that new supporter, the court will inquire into the nature and extent of the relationship in question. Additionally, Florida law also does not permit continued permanent alimony that results in the payee ex-spouse having more income than the payer ex-spouse.

Types of Alimony and Modification

Various types of alimony have different rules on modification. Some are completely modifiable at any time in the future. Others can only be modified in amount, or duration (end date). Some types of alimony are designated as non-modifiable alimony. This is an important term to identify if it is part of your original agreement. Courts will never impose non-modifiable alimony by force. For that term to be present in your final judgment, the two of you must have agreed to the language in a Marital Settlement Agreement. If the alimony is designated as non-modifiable then courts will treat it as just that – non-modifiable. That means you can never file a modification petition and expect to get the amount or duration changed. “Non-modifiable” is a serious term that is interpreted absolutely by the courts.

The Process of Alimony Modification in Florida

The disappointing fact for everyone seeking a change in alimony is that the process is very similar to an original divorce. You must serve a petition on your spouse, comply with extensive financial disclosure requirements, go to mediation, and then go to a final trial if there is no agreement or settlement. It can be long, time-consuming, and nerve-wracking. But it can also be worth it if your needs or financial ability has significantly changed since the final judgment. Retirement is not an automatic qualifier for a reduction or termination in alimony. Florida alimony law allows retirement at age-65 to carry great weight in a request to modify or terminate alimony. And a possible new alimony law may make it easier to modify alimony upon retirement. But for the moment, retirement is not an automatic pass for changing alimony. If you lost your job and are not at retirement age, the issue of voluntary vs in-voluntarily under-employment becomes important. In short, the court must determine you are unemployed because of your own desire, manipulations, or fault. If you are the other spouse, you have the burden of proving that point. This can be a complex issue and requires a thorough preparation on the part of your attorney. We sometimes employ an expert known as a Vocational Evaluator. That third party can survey job markets, review medical records, and testify to the court on the job prospects of either side. Vocational Evaluators come in handy for both sides in a battle over alimony modification. In the end, if there is no settlement at mediation, the issue of alimony modification must go to a trial. The trial will consist of a mixture of issues, including finances, employment prospects, medical info, and behavior. Attorney fees are always at issue – the court can make one ex-spouse or the other pay for or contribute to the other ex-spouse’s attorney fees. If the modification case is successful, the change will date back to when the petitioner filed their Supplemental Petition for Modification. That could mean either credits or arrears to one person or another.

Author’s note from Attorney Howard Iken: Florida alimony can be modified or terminated if there is an unexpected, involuntary, and substantial change in circumstances affecting the former spouse’s ability to pay or the other former spouse’s need for alimony. However, if the original divorce decree did not award alimony, the court cannot modify it unless nominal alimony was awarded. Various types of alimony have different rules on modification, and the court may also end permanent alimony if the payee enters into a supportive relationship or if the payee has more income than the payer.