Posted by Nydia Streets of Streets Law in Florida Alimony
Modification of Florida alimony based on retirement has received significant attention this year in the appellate courts. We previously discussed the implications of an alimony recipient reaching retirement age, and today, we review the consequences of the alimony payor reaching retirement age in the case Bauchman v. Bauchman, 4D17-1471 (Fla. 4th DCA 2018).
The former husband filed a petition for downward modification of his alimony payments, alleging he was near retirement age and planned to retire as of August 2017. He presented unrebutted testimony to the trial court that his retirement was not contemplated at the time the parties entered their marital settlement agreement. Despite this, the trial court denied the former husband's petition, holding the fact that he would reach retirement age was foreseeable. The trial court also awarded attorneys' fees and costs to the former wife.
The former husband, of course, appealed the trial court's ruling. The appellate court, in agreeing with the former husband, noted that courts have confused the concepts of foreseeable and anticipated with contemplated and discussed. In order to modify alimony, Florida law requires that a party plead that an unanticipated change in circumstances be pled by the party seeking the modification. The fact that the former husband would reach retirement age was a foreseeable fact at the time the parties entered their marital settlement agreement. But there was no evidence that this fact was taken into consideration, discussed and/or factored into the parties' settlement regarding alimony. Thus, the appellate court reasoned the former husband's retirement was not an anticipated change in circumstances that would warrant denying his petition.
The appellate court also reversed the award of attorneys' fees to the former wife after reviewing the alimony and assets awarded to her in the divorce. Where the evidence showed the wife was receiving $66,000 per year in alimony, had over half a million dollars in cash assets and had a net worth of over 2.5 million dollars, the appellate court reasoned there was no basis to award attorneys' fees and costs to her since it was clear she did not have a need for the same.
If you are nearing retirement age and fear you will not be able to meet your alimony obligation, contact a Miami divorce lawyer to go over your best options. You may be able to reduce your alimony payments so that you can meet your own monthly living expenses.