Modification of Alimony
To modify alimony, you must first have an order directing you to pay or receive alimony. Generally, if the Court didn’t award alimony in the initial Final Judgment of Dissolution of Marriage (Divorce), or you didn’t agree to it in the Settlement Agreement, then you cannot modify your final judgment to include it now. Unless the Court makes a specific finding that to reserve jurisdiction to award alimony later, it is powerless (the Court has no jurisdiction) to enter a judgment granting alimony after a Final Judgment has been entered ordering no alimony. However, if there was an award of alimony in the original proceeding, the Court has the power to modify or terminate alimony.
There are different types of alimony, but only one type is not modifiable. An award of bridge-the-gap alimony cannot be modified in amount or duration.
Most forms of alimony are modifiable when there exists a substantial change in one or both parties’ circumstances. When we say that an award of alimony may be modified or terminated based upon a substantial change in circumstances it must be clear that the change(s) in circumstances must not have been contemplated at time of final judgment of dissolution, and such change must be sufficient, material, involuntary, and permanent in nature.
Rehabilitative alimony may be modified or terminated based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan. So, besides the substantial change in circumstances, if a party is not doing as the plan requires, or has completed everything under the plan, this alimony can be terminated.
Durational alimony may be modified or terminated based upon a substantial change in circumstances, but only as to the amount of an award. The length of an award of durational alimony may not be modified except under exceptional circumstances. In addition, durational alimony may not exceed the length of the marriage.
Permanent alimony may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship.
Permanent alimony can be reduced or terminated based on a supportive relationship. But what is a supportive relationship? First let’s be clear, the supportive relationship must be between the person receiving alimony and another person that resides with the person receiving alimony and is a person who is not related by consanguinity or affinity. If the person paying alimony has a supportive relationship, this dose not give rise to a change in alimony.
The person paying alimony has the burden to prove, by a preponderance of the evidence, that a supportive relationship exists. The Court will use the criteria below in determining if there is a supportive relation:
- The extent to which the person receiving alimony and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife,” or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.
- The period that the person receiving alimony has resided with the other person in a permanent place of abode.
- The extent to which the person receiving alimony and the other person have pooled their assets or income or otherwise exhibited financial interdependence.
- The extent to which the person receiving alimony or the other person has supported the other, in whole or in part.
- The extent to which the person receiving alimony or the other person has performed valuable services for the other.
- The extent to which the person receiving alimony or the other person has performed valuable services for the other’s company or employer.
- Whether the person receiving alimony and the other person have worked together to create or enhance anything of value.
- Whether the person receiving alimony and the other person have jointly contributed to the purchase of any real or personal property.
- Evidence in support of a claim that the person receiving alimony and the other person have an express agreement regarding property sharing or support.
- Evidence in support of a claim that the person receiving alimony and the other person have an implied agreement regarding property sharing or support.
- Whether the person receiving alimony and the other person have provided support to the children of one another, regardless of any legal duty to do so.
Need and Ability Analysis
After the court has decided that there exists a substantial change in circumstances, the court must still do a need and ability analysis to determine if alimony can be reduced or terminated. A key factor in understanding this analysis starts with each parties’ financial resources.
Net Income – Reasonable Expense = Need or Ability
Applying the formula above, if you have a surplus (positive number), then you have the ABILITY – If you have a deficit (negative number), you have a NEED. And when examining your reasonable expenses don’t over inflate your numbers or count on credit card debt.
The court shall make a specific factual determination as to whether the person receiving alimony still has an actual need for alimony and whether the person paying alimony still has an actual ability to pay alimony. So, if the Court finds that the person receiving alimony no longer has a need or that the person paying alimony no longer has the ability to pay alimony, alimony should be terminated. However, if the court finds that the person receiving alimony still has a need for alimony and that the person paying alimony still has the ability to pay alimony, then the award shall remain or be reduced based on the need and ability. Simply, if alimony was initially awarded at $2,000 per month, and the analysis shows that the need is only $1,000 per month, or that the ability to pay is only $1,000 per month, then alimony should be reduced to $1,000 per month.
Florida Law on alimony is not easy and has difficult rules and procedures. Do not do it alone. I always offer a free consultation. There is no better way than sitting down face-to-face with me to learn what your rights are and to get what you deserve. If you are reading this, I am sure you know someone, a friend, or family member that has a horror story regarding their own experience. You should always consult an attorney that practices Divorces and Family law, routinely. I do not practice criminal law or elder law, or many other types of law. I am Florida Divorce and Family Law attorney that understands the laws completely, because I handle family law matters on a regular basis. I will always listen compassionately and attentively to your needs and concerns, and provide you with the right family law advice for your case.