Posted by Nydia Streets of Streets Law in Florida Alimony
A party nearing retirement may consider filing a petition to modify his or her alimony obligation in Florida. In order to modify alimony, there must be a showing of a substantial, permanent change in circumstances which was unanticipated at the time the original support amount was ordered. Many parties disagree about whether retirement is an unanticipated change in circumstances, as was the case in Befanis v. Befanis, 5D19-359 (Fla. 5th DCA April 17, 2020).
The parties were divorced after a long-term marriage and the former husband was ordered to pay $12,500 per month in alimony to the former wife. Five years later, the former husband filed a petition for modification of alimony alleging he had sold his business, was under a five-year employment contract, was earning far less income, and was preparing for retirement since he was nearing the age of 65. The parties resolved this petition by entering a stipulated final judgment reducing the former husband’s alimony obligation to $7,500 per month. The stipulation did not state the basis for the modification.
Almost 1.5 years later, the former husband filed another petition for modification alleging his employment contract had ended and he had officially retired. The former wife answered that there had been no substantial change in circumstances because the former husband was contemplating his retirement at the time the modified final judgment was entered. The trial court sided with the former wife and denied the former husband’s petition. The former husband appealed.
The appellate court reversed, holding “Although both the former husband and former wife testified that they anticipated the former husband's forthcoming retirement when the stipulated modification order was entered, there was no evidence that they contemplated the actual change and consequences to his income. [citation omitted] Notably, at the time of the modification, the former husband earned roughly $350,000 per year as a full-time salaried employee—an amount which, by all counts, is higher than his retirement income. The financial affidavits filed in the initial modification proceeding reflected the former husband's salaried income, and his petition in that proceeding did not discuss the financial circumstances surrounding his future retirement. Additionally, the stipulated modification order was silent as to the basis for the modified amount of alimony. Accordingly, there was no competent, substantial evidence to indicate that the parties accounted for the former husband's future retirement income when they consented to the modification order. Therefore, we cannot agree with the trial court that the parties contemplated, considered, and factored in the former husband's retirement when they agreed to a downward modification of alimony.”
If you are filing a petition for modification of alimony or are defending against one, it may be helpful to speak to a Miami family law attorney before proceeding. Through a consultation, you can learn how the law may apply to the specific facts of your case.