It's the Law: Alimony modification requires real changes

Article Highlights

  • In Florida, alimony is always subject to modification, as long as it was awarded in your divorce decree.
  • My ex-wife is talking about taking me back to court for more alimony. Can she do that?
  • Generally, the court looks to both sides of the alimony equation when deciding a modification issue.

Q:My ex-wife is talking about taking me back to court for more alimony. Can she do that?

A: In Florida, alimony is always subject to modification, as long as it was awarded in your divorce decree. If no alimony is awarded at time of divorce, the court has nothing to modify.

Section 61.14 of the Florida Statutes provides that after alimony is awarded, either party may apply to the court for modification if the circumstances or the financial ability of either party changes. The statute states that the court may also reduce or terminate alimony if it finds that a supportive relationship has arisen between the recipient and a person with whom the person resides.

Florida courts have required more than a mere change in circumstances to justify modification of alimony. The change must be substantial. It also must be shown that the change was not contemplated by the parties at time of the most recent court order concerning alimony.

A substantial change in circumstances can involve either or both parties. Increase or decrease of a need by the recipient can be considered as can change in the payor ability to pay. Generally, the court looks to both sides of the alimony equation when deciding a modification issue.

In the case of Bedell v. Bedell, Florida’s Supreme Court held that a substantial increase in the financial ability of an alimony paying former spouse, standing alone, may justify an increase in alimony, although it does not mandate an increase. Although some courts have granted an increase in alimony based solely on the payor’s increased ability to pay, most decisions reference a need by the recipient. The need may be attributed solely to increase in the cost of living and passage of time, but evidence is usually present of both increased ability to pay and increased need.

Decreased ability to pay, standing alone, can justify reduction in alimony, provided the decrease is not voluntary and appears to be more than a short-term change. Particularly heated cases involve retirement by the payor. The 1992 case of Pimm v. Pimm litigated the retirement issue. In Pimm, Florida’s Supreme Court held that voluntary retirement of the payor was a factor that could be considered a change of circumstances warranting reduction and even termination of alimony. The court did not specifically address the allowable age for retirement, but indicated retirement prior to age 65 would be presumed unreasonable. The court went on to explain that retirement might not be allowed to substantially affect obligation at any age if modification would place the recipient in poverty. Other Florida courts have held that retirement of the recipient may also constitute a change in circumstances justifying alimony modification.

If the recipient’s economic situation improves, that improvement, alone, will not usually warrant a modification of alimony. The circumstances of both parties will be reviewed by the court to determine if modification is justified. In Webb v. Webb, the court found that the recipient’s income had increased, but that the payor’s income had increased even more, and the recipient needed the full amount of alimony to maintain the lifestyle she enjoyed during the marriage. It denied the payor’s request to reduce alimony.

Change in circumstances of the recipient considered by the court is not limited to increased income. Gifts, inheritance and lottery winnings may all be considered. Increased need, standing along, may support an increase in alimony. However, the change must not have been anticipated at time of the previous award.

Expenses of a second marriage will not support a change in alimony. In Schiff v. Schiff, Harold Schiff petitioned for reduction in alimony to his ex-wife because his cost of living with his second wife exceeded his income. His income had actually increased by 13 percent since the divorce. The court addressed Mr. Schiff’s effort to reduce alimony because his living expenses with wife number two were so high, by stating, “Mr. Schiff seems to think that he should be permitted to squeeze some of it from the old wife’s alimony…” The court rejected Schiff’s request.

In contrast, the appellate court sided with Mr. Kamenski in the case of Kamenski v. Kamenski. In that case, the parties were divorced in 2004. At time of divorce, Ms. Kamenski was earning $17,500.00 per year and Mr. Kamenski $54,000.00. In July 2007, Mr. Kamenski’s income was $50,000.00 per year while Ms. Kamenski’s income had increased to $41,000.00 per year. That change in financial position was considered substantial.

The facts and circumstances of each case, and the presentation of evidence, will determine the outcome. An experienced attorney will be able to review your situation and provide advice. You should discuss the facts and circumstances of your case with an experienced attorney before proceeding further.

William G. Morris is an attorney with offices at 247 North Collier Boulevard. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

© 2009 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Comments » 1

puma writes:

The current misandrist generation of Family Law puts forward two justifications for alimony:

1) The (older) "Accustomed" Rationale: You don't hear this too often these days as it is an indefensible position in the age of gender equality. The obvious response is well what about what the ex-husband got accustomed to? Why accomodate only one party's accustomedness, and totally ignore the other's? Is the difference what's between their legs?

2) The (newer) Earning Capacity Rationale: This is the one you hear most these days. Basically it argues that the husband's earning capacity (and hence all his future labors, blood, and sweat until the day he dies) was a "property" of the marriage business partnership. Now that the marriage is over the judge will now "split" that property. Essentially the wife "owns" some percentage (usually 1/3) of the husbands labors until either party dies (or she remarries, at which point she "owns" some other guy). Of course no one dares question the notion that a person's physical being (through extension of owning his future labor) can be "owned" by someone else. The extension of the same logic SHOULD DICTATE that the homemaking skills, social charms, and physical charms (i.e. forexample made possible by gym memberships and cosmetics paid for the husband during the marriage) of the wife are also marital-property. Hence by that same logic a court MUST decree that an ex-wife is "obligated" to continue sharing her homemaking labors, social charms, and physical charms with the ex-husband after the divorce. If a husband's earning-capacity is marital property, why isn't the wife's home-making capacity also marital property?

If you think that the notion of a Judge giving away the ex-wife's labors&body is sexist, why isn't giving away the ex-husband's labors&body also sexist? The latter is precisely what Alimony law does today.

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