Posted by Nydia Streets of Streets Law in Florida Alimony
When a party is ordered to pay permanent alimony in Florida, is retirement a factor that can be considered in modifying or possibly terminating support payments? Generally, a party’s retirement may be a substantial change in circumstances that warrants modification of alimony. A party seeking modification has the burden of proving the change is involuntary and permanent. This was an issue in the case Tanner v. Tanner, 2D20-3042 (Fla. 2d DCA October 20, 2021).
The parties were married for 33 years by the time they divorced. The former husband was ordered to pay permanent alimony to the former wife in the amount of $1,000.00 per month. The final judgment of divorce noted that the former husband was nearing the standard retirement age of 65 and that upon retirement, his ability to pay might be diminished as well as the former wife’s need. About two years after the entry of the final judgment, the former husband filed a petition for modification alleging that he was forced to retire early because of health conditions. He also alleged that because of his health, he was unable to find comparable employment. The former wife filed a motion for contempt for the former husband’s non-payment of alimony. After a hearing, the former husband’s request for modification was denied and the former wife’s motion for contempt was granted. The former husband appealed.
The appellate court noted that the former husband retired only six months before the standard retirement age of 65. It also noted that his conditions of COPD, diabetes, and multiple sclerosis would not permit him to work 12-hour shifts of manual labor. The court held “In light of the former husband's age, the unrefuted evidence of the former husband's health issues, and the nature of his work, the trial court erred in finding that the former husband's retirement was unreasonable. The former husband was six months shy of the presumptive age of retirement, and he presented evidence that he was unable to continue to perform the work he had been doing for forty years.” The court also found that it was error for the trial court to ignore that the evidence showed the former wife was now receiving monthly payment from the former husband’s pension, therefore cancelling her need for alimony. The case was remanded with instructions to grant the former husband’s petition and reversing the contempt order.
If you are facing or contemplating modification of Florida alimony, schedule a consultation with a Miami divorce lawyer to understand how the law may apply to your case.