Question: I got divorced 10 years ago. Since then, my income has gone down and my ex-spouse has been doing quite well. As part of our settlement, I agreed to pay child support. I have proposed reducing the amount I am paying and my ex-spouse claims that this is not possible as our agreement is perpetual alimony. Is she right?
Answers: Alimony payments are paid until the death or remarriage of the recipient or until the death of the payer. Other types of alimony include rehabilitating alimony, lump sum payments, bridging alimony, and permanent alimony. When alimony is determined by the court (as opposed to an agreement between the parties), it must take certain legal factors into account, including need, ability to pay, standard of living during the marriage, ages of the parties, and their physical and mental health. Any form of alimony payable over time is subject to change.
Section 61.14 of the Florida Statutes deals with the modification of alimony payments. It provides that if the parties enter into a maintenance agreement, or if one party is required to pay court-ordered maintenance and there is a change in the circumstances or financial capacity of either party, either party may apply to the court for an amendment order. Florida law makes it clear that the statutory right to change child support is incorporated into any agreement or judgment that provides for child support, unless expressly waived.
A threshold for the change in maintenance is to identify a change in circumstances that could not have been foreseen at the time of the agreement or judgment and the change is permanent, material and involuntary. In deciding whether to reduce child support payments, the court considers more than a reduction in the payer’s income or an increase in the recipient’s income. It also compares the relative financial circumstances of the parties at the time of the divorce to their position at the time the change is requested. The court examines closely whether a party’s voluntary action contributed to the change. Financial or employment-related measures to reduce solvency do not justify a reduction. Significant pay cuts or job losses may justify a cut as long as the payer is actively trying to replace the lost income.
There are exceptions to the rule of voluntary income reduction. When a payer suffers a temporary reduction in income to complete professional development training, courts have ruled that this is not a voluntary reduction in income. The courts view the payer’s pursuit of education as an attempt to improve the economic position in good faith and have agreed to reduce the alimony obligation during this period.
Retirement may be the basis for alimony reduction, but the court will consider all the circumstances. Early retirement without a medical reason is usually not enough to reduce maintenance. Even if the retirement is at age 65 or older, the court still examines whether the retirement is reasonable under the circumstances
The court must also determine whether the alimony payments are genuinely supportive or part of the estate settlement. The title of the agreement or the wording of the provision is not relevant. Based on the circumstances and the effect of the payment, the court examines whether the payment is alimony or an equalization of assets. If it is a property bill, it is generally non-amendable.
Alimony payments can also be modified if the recipient enters into a supportive relationship with someone, even without marriage. This is a relatively recent legislative change to target alimony recipients living with someone not married to help continue the alimony.
Florida law makes no distinction between changes in child support awarded by a court or an agreement. Nonetheless, Florida courts impose a heavier burden to change contract-specified child support payments. The burden becomes almost insurmountable when the agreement states that the alimony cannot be changed. This is how the court ruled in the most recent case of Elbaum vs. Elbaum.
In Elbaum, the parties’ alimony agreement states that alimony “is not modifiable except in the event of an unforeseen circumstance affecting the husband’s business or the husband’s health affecting his ability to work, and only in the case of the husband due to unforeseen circumstances or the health of the husband does not receive business income.” The ex-husband submitted a request to change the alimony, arguing that his ex-wife’s needs had decreased because she was in a supportive relationship. She lived with her partner for at least two years and mixed assets. The court rejected his application.
The Court noted that the parties are free to waive the statutory right to change maintenance in a settlement agreement if the agreement clearly and unequivocally states a waiver or if the interpretation of the entire agreement cannot lead to a different conclusion. Mr. Elbaum waived his right to vary the alimony payments for reasons other than the limited circumstances provided for in his agreement. Those circumstances did not include the former wife entering into a supportive relationship.
Maintenance changes can be complex. The circumstances at the time alimony is determined are important. A change in these circumstances is required and the courts will examine all aspects to determine whether the alimony even qualifies for change as a preliminary issue. A good lawyer is essential in this case.
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a wide range of subjects, including civil procedure, real estate, commercial and corporate law, estate planning and probate law, domestic relations and contracts. He regularly writes this column on legal matters that often affect non-lawyers. The information contained in this column does not constitute legal advice and is necessarily generalized. Readers should consult a qualified attorney if they have questions about specific matters.
Questions about this column can be sent to: William G. Morris, email: wgmorrislaw@embarqmail.com or fax, (239) 642-0722. Other interesting articles can be found on our website www.wgmorrislaw.com.
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