Theodore Enfield: Miami & Fort Lauderdale Divorce and Child Support Lawyer
When marriages break down and there are children involved, the separating spouses are often lacking agreement over who is responsible for their care, and the future role of each parent. As a result, federal and state courts are called upon in a divorce or annulment in order to make sure that everyone involved receives a fair and just settlement to these issues. Commonly, courts will rule that one parent will have primary custody of the children, while the other must pay “child support,” or a monthly taxable stipend to the primary custody parent.
“Alimony” is not exactly the same as child support, which is a taxless but obligatory monthly payment from one parent to the other that is solely for the support of children. With alimony, however, the payments are taxable, and are essentially deducted from the income of the receiving spouse. Alimony is occasionally called “spousal maintenance” or “spousal support” in the United States.
Alimony differs from state to state, but generally it lasts for a term or period whose length depends on the length of the marriage. Another factor affecting alimony is the relative income of the parties involved. Usually, the more money that the payor makes, the more they are ordered to pay in alimony. The entire spectrum of alimony law is undergoing reform in the United States, and always depends on the case; this is why strong legal counsel is so important to have in cases like this.
Sometimes, a previously decided-upon child support or alimony plan needs to be modified, for whatever reason. Factors may have changed—income, living situation, or other circumstances. Some of these are listed below.
1. Trial Court’s Required Finding of Fact – In many cases, the court will investigate the situation thoroughly, hear arguments for and against a modification, and act accordingly. Sometimes the court can enter a “Supplemental Final Judgment to Modify Alimony,” which is an investigation and subsequent decision on changing alimony after the initial dissolution proceeding.
2. Temporary Modification – Any alimony awarded is considered final until a court modifies it. Even if there is a modification pending, or a change otherwise put forward, the courts of Florida are unable to make any temporary change to alimonies.
3. Needs Exceeding Ability to Pay – Sometimes the needs of the party receiving alimony increase, or the income of the party providing alimony increases, then it is sometimes appropriate to seek a modification of alimony terms.
4. Financial Status of Payor’s Current Spouse — Sometimes, people attempt to circumvent their alimony agreements by living off of a new partner’s income (which, on paper, makes them appear to have far lower income). The court typically moves to address issues like this quickly and decisively.
5. Modification of Permanent Alimony — Since it has an essentially unending duration, permanent alimony is allowed to change (unless both parties agreed to waive this right). Usually, however, circumstances have to be serious in order to warrant modification. Changes are not normally made based on something that will happen in the future—normally, there must be present circumstances that justify the alteration. The status of minors (such as their age and ability to provide for themselves) typically has no bearing on alimony, and is therefore rarely used as a legitimate reason for an alimony change. An example of a change that would likely be legitimate is a marked decrease in health by the recipient of alimony. This would be cause to increase the payments, since there is a clear, demonstrated need to do so.
6. Modifiability of Lump Sum Alimony — Usually, this type of alimony is not modifiable, since it is designed to be a one-time affair. However, changes can be made to the manner in which the alimony is paid, even if no previous agreement existed.
7. Modifiability of Rehabilitative Alimony — Since this type of alimony is designed to help one spouse “get on his/her feet,” rather than support them long-term, it is subject to termination or modification. When/if the receiver of alimony no longer needs the financial assistance, it may be reviewed and eliminated accordingly. However, in the opposite case, it sometimes can be converted to permanent alimony. This requires evidence, of course, which must be presented to the court, and must warrant the recipient’s need for permanent alimony. The court will usually look at the recipient spouse’s skills, education, health, and general progress toward independence in order to reach a decision on modification. Self support, i.e. independence, is more than just income enough to survive. The initial alimony is based on the conditions which the former spouse (the one receiving the alimony) was accustomed to when they were married, before the divorce.
8. Modifiability of Rehabilitative Alimony – The court must take into consideration the recipient’s ability to achieve the marital standard of living and the goal of rehabilitation. Rehabilitative alimony cannot be converted to permanent alimony just because the trial judge believes that permanent alimony would have been a more appropriate alimony in the first place. The court would have to apply proper modification principles in order for the alimony to take on a different form. If a court is considering changing rehabilitative alimony to permanent alimony, the court should also consider the original purpose of the award, whether it has been achieved, and if not, the likelihood of the person becoming self sufficient. It is not proper or correct for a court to grant a conversion of rehabilitative alimony to permanent alimony while the party is still in the process of rehabilitation. The court and the parties involved need to wait until the party going through rehabilitation has either preformed in creating financial stability or was unable to complete the plan.
9. Modifiability of Rehabilitative Alimony – A party seeking a change from rehabilitative alimony to permanent alimony who had a mental disorder known at the time of the initial agreement cannot use the mental disorder as a way of getting around the rehabilitation plan because it was known beforehand. If a mental disorder develops after the original final judgment, then that is an important substantial change that could modify rehabilitative alimony to permanent alimony. It is very important for the court to create a time frame, time limit, and set of goals, for the rehabilitation alimony plan at the original judgment and if it is modified, then at the time of modification.
10. Modifiability of Nominal Alimony – Nominal alimony can be awarded if the court believes that the payee needs the alimony and the payor is unable to pay it at the time of the final judgment. In the case of STOCK V. STOCK, the former husband was unable to pay alimony and child support at the same time. He paid the child support until the minors reached maturity, and then he began to pay alimony.
11. Modifiability of Bridge-The-Gap Alimony — Bridge-The-Gap Alimony is alimony made to give a former spouse an easier transition into financial life after marriage (much like rehabilitative alimony). It is normally made in lump-sum installments. This alimony normally occurs after a short-term marriage where the standard of living was much higher with a spouse than in a single life. Bridge-the-gap alimony is also a non-modifiable alimony, not extinguished when the payor passes away.
12. Standards of Proof to Modify Alimony Set by Agreement – Prior to the year 1993, it was more difficult to modify alimony that was created in a settlement agreement than the alimony awarded by a court order. Nowadays, the burden of proof is the same for both a settlement agreement and a court-ordered alimony award. In cases where payments are not termed “alimony,” the court will probably look at other factors in determining if the payments are ones of support or property settlement. Generally, pure property settlement agreements are non-modifiable unless there is consent from the parties, but if an agreement refers to a monetary award (such as alimony), it can be modified, and it is not a pure property settlement agreement. In agreements where the payments are not termed “alimony,” the court will look at other factors in determining if the payment is a support of property settlement.
13. Waiver of Rights to Modification – The right to alimony and the right to modification can be waived in an agreement of the parties. If the parties sign a irrevocable waiver to modification, no matter how devastating or unanticipated a circumstance, the court will be unable to modify alimony or support. In BENITEZ V. BENITEZ, both parties waived the right to seek modification, later the husband wanted to reduce his alimony payments because his former wife was receiving additional financial resources. A waiver to the right to modify is not modifiable, and he could not modify his support. A “General Release” from a contract, does not bar modification of alimony, because the right to modification is determined by future acts, unimaginable or unforeseen in the time of the original judgment. In the case of BRITO V. BRITO, the former husband and wife made an agreement where the former wife could not ask for a modification of support unless the former husband was in a valid and enforceable default.
14. Agreement/ Suspension of Alimony Obligation – If unemployment is involuntary and temporary in nature, the situation is not permanent in nature; so modification is not the correct approach. In cases where the payor is temporarily unemployed and seeking employment, the court does not have to modify payments, but should temporarily suspend payments. Temporary relief may be granted upon a showing of a provisional change in circumstances; it would be an error to permanently reduce alimony as a result of a temporary change.
15. Reduction in Payor Spouse’s Income – A reduction in the payor spouse’s ability to pay does not automatically translate into a reduction in support. Alimony payments rest on the ability of the payor to pay as a whole. If the trial court is using an averaging method to calculate a reduction in alimony payments, the court must also have substantial evidence to justify the reduction in alimony payments.
16. Increase in Payor Spouses Income – An increase in the payor spouse’s income may justify, but does not guarantee an increase in the alimony payments. If the court found that the payee was in need of an increase in support, then the court would probably seek to modify support and increase the payments. The need for additional alimony must be determined based on the prior standard of living that was established during the previous marriage, regardless of the post-dissolution increase of income by the payor.
17. All Aspects of Payor’s Spouses Income Considered in Modification Action – In determining whether or not a change in circumstances will alter the alimony payments, income is not the only financial element reviewed. The court has the ability to review all aspects of one’s financial life, in determining reductions and increases in alimony. In the case of BREWER V. BREWER, the former husband lost his job and was unable to find employment that compared to his former income; he received reduced alimony because his case was unexpected and permanent.
18. Ability to Pay Arrearages Must be Considered – In the case of RADZIWON V. RADZIWON, the court had to reverse its former decision when the former husband was unable to support himself because he had to pay arrearage payments, even though the was able to reduce his payments.
19. Imputation of Income – In the case of ENSLEY V. ENSLEY, the former husband quit his good paying job before the dissolution of marriage so that he did not have to pay as much alimony; he then tried to find a high paying job after the dissolution. He was not able to find as high a paying job as he had before and the court had a very difficult time calculating the income of the payor because his actual ability to earn was higher than what he was earning at the time of the dissolution and what he was earning at his new job. The court cannot impute income unless they find that the payor is earning less than he or she possibly could with the education, skills, and experience they have.
20. Retirement – The Supreme Court of Florida has noted the affects of retirement on support in the case, PIMM V. PIMM. The court decided that even though speaking about retirement and its affects on support would be good practice. Although silence in that regard should not bar consideration of reasonable retirement as part of the total circumstances in order to determine if there can be a modification of alimony from specific circumstances. In determining if retirement is reasonable, the court will look at the payor’s age, health, type of employment, motivation for retirement, and the general age of retirement for his or her field. There is a wide spread acceptance of the age of 65 or later for retirement, but if retirement will cause the former spouse to be on the verge of poverty the court will probably have to review it. The court needs to consider the needs of the spouse receiving support and if the retirement will completely alter the life of that person.
21. Voluntary Retirement – If a person takes an early retirement do to mental or physical health issues, he or she will probably be granted a reduce in alimony. His or her circumstances were unexpected and permanent, which normally leads to a modification in alimony. In the case of MONIZ V. MONIZ, the former husband was a police officer who endured two heart procedures, a shattered knee, and an ankle injury. He took an early voluntary retirement at 61, and he was granted reduced payments.
22. Supportive Relationships – In 2005, the Florida statutory law changed to address supportive relationships and their affects on alimony. The statute explains and describes factors for the court to consider. The court has the ability to reduce or terminate alimony if the payor can produce evidence that a supportive relationship exists. The nature and the extent of the relationship can be questioned by the court, so that the court can determine what to do with the alimony. The extent to which the obligee and the person in the relationship are engaging in acts as a married couple such as using the same last name, a common mailing address, and referring to each other as husband and wife will be taken into account by the court. The amount of time that the couple has resided together, the extent to which the couple has pooled their assets or exhibited financial interdependence, whether or not they have purchased property together, and whether they have joined in support of children.
23. Supportive Relationships – The court also believes that a supportive relationship is not seen as a marriage by the state without a marriage license, but the state recognizes that some relationships provide the economic support of a marriage. Alimony does not continue with a remarriage, and if a relationship will have the same economic support as a marriage, alimony should either be reduced or terminated. In PILL V. PILL, a boyfriend of the former wife preformed yard work and house work that equaled around $600.00 per month. The former husband received a reduction in alimony of only $1.00 per year as long as the former wife’s needs were met. Even if alimony is not completely terminated or reduced, a nominal award could be introduced that could allow other modification in the future. The court must also take into consideration the former spouse’s “needs” even if she is in a supportive relationship. The issue regarding supportive relationship is a difficult one for courts to address at times, because it is a mixed question of law and fact.
24. Retroactive Modification – A modification should be retroactive to the date of filing the petition seeking the modification if there is evidence that the payee had need and the payor had the ability to pay at the date of filing. A termination of alimony needs to be effective on the date of filing, when the basis is in existence because of the filing. If a foreign order for alimony is established in Florida and someone wishes to modify it, the modification can be retroactive to the date of filing because foreign judgments must be treated the same as domestic judgments. If a petition for final modification is pending, then the court does not automatically have the ability to award a temporary alimony pending the final judgment to the action.
25. Modification of Alimony Arrearages – Support obligations that come from a court order dealing with a domestic violence case are vested rights granted to the payee from the payor. Past-due installments from the payor to the payee become the payee’s property rights and the payments cannot be retroactively modified.
26. Jurisdiction to Modify a Foreign Alimony Award – A Florida court can enforce a spousal support order issued by a foreign court, but cannot modify it. The foreign court has continued exclusive jurisdiction over that order under the laws of that state.
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For a free consultation by our Fort Lauderdale Divorce Attorney, or those seeking a child custody lawyer in Miami, call Theodore Enfield at 305-933-9592, 1-800-733-5299, or fill out the contact form on this Website.