In parts one and two of our series on alimony, we covered the different types of alimony and how alimony is determined. Now, in our final post of the series, we will talk about what’s involved to modify alimony. Can it be done, and if so, under what circumstances?
When Alimony Can Be Changed
Typically, whether done by a judge, in mediation, or collaboratively, an alimony determination is made very carefully based upon the financial circumstances of the parties at the time. Therefore, there may be basis for modification if the financial circumstances of either party significantly change. The change needs to be “sufficient, material, involuntary, and permanent in nature.”
Some examples of changes that may warrant a modification are:
- Significant increase or decrease in pay of either the paying or receiving ex-spouse
- Disability, injury, or dramatic change in health that affects the ability to work
- Substantial inheritance or winnings, such as lottery
- Retirement or involuntary loss of job
- The alimony recipient is living with their significant other in a Supportive Relationship
Alimony typically automatically terminates if the recipient gets remarried or if either party dies. However, it can also be terminated if the alimony recipient is cohabitating in a supportive relationship. In these situations, a judge will consider the nature and length of the relationship and the financial circumstances in the relationship.
Types of Alimony That Can Be Changed
Not all alimony can be modified, such as Lump Sum and Bridge the Gap alimony, and sometimes the parties even agree to make all alimony non-modifiable. However, if there is no agreement that the alimony is non-modifiable, the types of alimony that can be modified when circumstances are deemed sufficient are Permanent, Durational alimony and Rehabilitative alimony. The standards for modification are different for each. For example, Permanent alimony may be modified or terminated by proving a substantial change in circumstances. However, while the amount of Durational alimony can be modified based simply upon a substantial change in circumstances, the length of an award of Durational alimony can only be modified if there are exceptional circumstances. An award of Rehabilitative alimony on the other hand can be modified when there is a substantial change in circumstances, upon noncompliance with the rehabilitative plan or upon completion of the rehabilitative plan.
To initiate a change in alimony, you will need to file paperwork with the court; the divorce case will need to be reopened, and depending on the circumstances – you may even have to go to trial.
Retroactive Changes to Modify Alimony
In Florida, family courts have the discretion to modify or adjust court-ordered alimony either by retroactively increasing or decreasing the alimony to the date in which the party seeking the modification filed the petition for modification of alimony. However, a court will not be able to order the alimony modification retroactive to a date of the change in circumstances. Thus, if you are entitled to a modification it is best to file as soon as you are aware of the change in circumstances.
When Alimony Cannot Be Changed
As a preliminary matter there must be some award of alimony in the Final Judgment for the court to even have jurisdiction. Thus, if not ordered in the original proceedings and there is a significant change in circumstances after the Final Judgment the court simply does not have jurisdiction any more to order it. Sometimes there is a nominal award of alimony of $1 a year to preserve this issue if the circumstances warrant it. Also, there are oftentimes parties agree to make the alimony non-modifiable. In those instances, the Court will enforce the agreement and will not modify alimony. There are other types such as Bridge the Gap alimony that are non-modifiable pursuant to Florida Statutes.
Additionally, because the statute states that your circumstances must be sufficient to deem alimony modification appropriate, a judge could determine they are not, in fact, sufficient. Examples of insufficient circumstances may be a small living expense increase or pay cut, or a one-time expense even if it is significant to you. Finally, in most cases the change must be involuntary. As such, if you willingly leave a job or purposely get fired, you will most likely not be eligible for a modification of alimony.
We’ve now covered the different types of alimony that exist, how alimony is calculated, and when and how alimony can be modified. However, walking through the process of seeking alimony or modifying alimony is typically not something that should be done without legal advice. Should you be looking for someone to assist you with this process we would love to help you. Please feel free to contact the Heskin Martinez Law Group should you need assistance.