Can Florida Alimony Be Changed Due to Retirement, Unemployment or Health Issues?

Written by: Lenorae Atter, Attorney at Law

Alimony may be awarded in a Florida divorce, if one spouse can show a need for alimony based on income, expenses, lifestyle, etc. AND if the other party has an ability to pay alimony, based on income, expenses, lifestyle, etc. The initial award of alimony can be for a set period of time or it may be permanent, depending on a number of factors including length of the marriage, ongoing need for support and the like. Once alimony is determined, even if it’s permanent alimony, it may be modified or changed by the court if the seeking party can show a substantial change in circumstance, such as a decrease or increase in income by at least 15% or an illness, or multiple other factors that may lead the court to believe that there is need to modify the existing alimony order. The courts in Jacksonville and North Florida are likely to modify if a significant change in circumstance is shown and the need or ability to pay has been greatly impacted by post divorce issues.

In a recent Florida appellate case, Hahn v. Hahn, 36 FLW D1474 (Fla. 4th DCA July 6, 2011), the Former Husband had requested the trial court modify the permanent alimony he was required to pay. The Former Husband made such a request after he decided to retire at age 69. Upon his retirement, the Former Husband’s income reduced to $1,500 in Social Security and he had individual, monthly expenses of $2,100. He was also receiving financial assistance from his significant other, but he was still paying his individual expenses of the $2,100 per month. The Former Wife was unemployed and, at age 61, was looking for employment. At trial, the Court reduced the Former Husband’s monthly alimony to $450 per month. However, on appeal, the appellate court ruled that the Former Husband did not have an ability to pay, therefore, the appellate court instructed the trial court to either completely eliminate the Former Husband’s alimony obligation or reduce it to a nominal amount (typically a very small amount, sometimes $1 to preserver the alimony in case something were to change).

Previously, another case in a different district court of appeals, Suarez v. Suarez, 43 So.3d 118 (Fla. 3rd DCA 2010), the Former Husband requested a downward modification of his alimony obligation to the Former Wife. At the time of the divorce the Former Husband was making $90,000 per year and the Former Wife was making $21,000 per year. After the divorce, the Former Husband wanted to retire from his job and asked for a modification of alimony. At the time of the request, the Former Husband was receiving $58,000 per year in retirement benefits and the Former Wife was making $21,000 per year. At trial, the trial court ruled that the Former Husband’s alimony obligation was terminated based on the facts presented. However, the appellate court reversed the trial court. The appellate court determined that there was no avoidance of alimony by the Former Husband choosing to retire, but that there was also no determination that the Former Husband did not have an ability to pay alimony. Therefore, the appellate court determined that the Former Husband still made significantly more than the Former Wife and that the Former Husband had an ability to pay some alimony. The appellate court then instructed the trial court to determine some amount of alimony for the Former Wife

Regardless if the determination for alimony is during the initial divorce action or done post divorce, the rules for alimony remain the same: the payor has an ability to pay and the payee has a need for alimony. If these things cannot be shown, then the court may reduce or terminate alimony regardless of they type of alimony initially ordered. The issue becomes whether the needing spouse has made provisions for such a change, because the impact could be more devastating the receiving party than the paying one.