The upkeep will be modified

Question: I got divorced 10 years ago. Since then, my income has dropped and my ex-spouse is doing reasonably 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 permanently periodically refers to alimony. Is she right?

Reply: Permanent regular maintenance is paid until the recipient dies or remarries or the payer dies. Other types of alimony include rehabilitative, lump-sum, incomplete, and permanent alimony. If the maintenance is determined by the court (as opposed to an agreement between the parties), certain legal factors must be taken into account, including neediness, solvency, standard of living during the marriage, age 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 Bylaws deals with the change in alimony. It stipulates that if the parties enter into a maintenance agreement or if one party has to pay maintenance determined by a court and a party’s circumstances or financial standing change, either party can apply to the court for an amendment order. Florida case law makes it clear that the statutory right to change maintenance is included in any agreement or judgment that provides for maintenance unless specifically waived.

A threshold for change in maintenance is to justify a change in circumstances that was not foreseeable at the time of the agreement or judgment and the change is permanent, material and involuntary. When deciding on a reduction in alimony, the court will consider more than a decrease 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 with their situation at the time of the requested change. The court carefully examines whether the voluntary action of a party contributed to the change. Setting up finance or employment to limit solvency does not justify a cut. Significant wage cuts or job losses can justify a cut as long as the payer is actively trying to replace the lost income.

There are exceptions to the voluntary income reduction rule. If a payer has a temporary income cut to complete career advancement education, courts have ruled that it is not a voluntary income cut. The courts regard the payer’s pursuit of education in good faith as an attempt to improve the economic situation and have agreed to reduce the maintenance obligation during this time.

Retirement may be the basis for a reduction in alimony, but the court will review all circumstances. Early retirement without a medical reason is usually not enough to reduce maintenance. Even if you retire at the age of 65 or older, the court is still examining whether retirement is appropriate under the circumstances

The court must also determine whether the maintenance is really supportive or was part of the property settlement. The title of the agreement or the wording of the provision is not relevant. The court examines the circumstances and the effect of the payment in order to decide whether it is a maintenance payment or a settlement. If it is a real estate settlement, it cannot be changed in principle.

The alimony can also be changed if the recipient enters into a supportive relationship with someone, even without marriage. This is a relatively recent legislative change to address dependents who live with someone who is not married to continue the maintenance.

The Florida Bylaws make no distinction between changes to maintenance claims awarded by a court or an agreement. Still, the Florida courts are putting a greater burden on changing the agreed alimony. The burden becomes almost insurmountable if the maintenance contract cannot be changed. The court in the most recent case of Elbaum v. Elbaum decided.

In Elbaum, the parties’ maintenance agreement stipulated that the maintenance payment cannot be changed “except in the event of an unforeseen circumstance affecting the husband’s business or the husband’s health, affecting his ability to work, and just in case that the husband receives no business income due to unforeseen circumstances or the husband’s health. ”The ex-husband applied for a change in maintenance on the grounds 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 their fortunes. The court denied his request.

The court found that the parties are free to waive the statutory right to change maintenance in a settlement agreement if the agreement clearly states the waiver or if the interpretation of the entire agreement cannot lead to a different conclusion. For reasons other than the limited circumstances provided for in his agreement, Mr. Elbaum waived his right to change maintenance. These circumstances did not include the ex-wife entering into a supportive relationship.

Maintenance adjustments can be complex. The circumstances at the time of the maintenance payment are important. A change in these circumstances is needed and the courts will review all aspects to see if the alimony as a preliminary ruling can be changed at all. A good lawyer is essential in this case.

William G. Morris is an attorney with office at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a wide range of subjects including civil litigation, real estate law, commercial and corporate law, estate planning and estates, domestic relationships and contracts. He writes this column regularly on legal matters that often affect non-lawyers. The information contained in this column does not constitute legal advice and is necessarily generalized. The reader should consult a qualified lawyer with questions about specific circumstances.

Questions about this rubric can be sent to: William G. Morris, email: or fax (239) 642-0722. Other interesting articles can be found on our website

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