- Alimony, How To Get It? Modify It? Defend Against It?
- March 26, 2010
- Law Firm: Luis E. Insignares - Fort Myers Office
1. HOW TO GET IT
I. THE STATUTE AND ITS CRITERIA
Subsection (1) — General Considerations/Adultery
Section 61.08, Florida Statutes, sets forth numerous criteria for the award of alimony in a dissolution-of-marriage case. The statute’s first subsection specifically says that “alimony may be rehabilitative or permanent in nature.” (Emphasis supplied). The same subsection also says that the court “may order periodic payments or payments in lump sum or both.” The statute does not list criteria distinguishing between when permanent versus rehabilitative alimony is to be awarded nor when payments are to be periodic versus lump sum. Those criteria have been established by the case law.
Section 61.08(1) also contains a provision that strikes some as curious in a state that embraces “no-fault divorce”: the statute specifically states that the court “may consider the adultery of either spouse in determining the amount of alimony, if any, to be awarded.” However, Florida case law has uniformly limited this provision to situations where the adultery had an economic impact on the marriage (typically where a spouse spends “marital” funds on a paramour). These cases usually reverse alimony awards that were adversely affected by adultery evidence, typically because there was insufficient evidence that the adultery caused an economic impact on the marriage. See, e.g., Noah v. Noah, 491 So.2d 1124 (Fla. 1985); Heilman v. Heilman, 610 So.2d 60 (Fla. 3d DCA 1992); Santoro v. Santoro, 642 So.2d 87 (Fla. 2d DCA 1994); Pardue v. Pardue, 518 So.2d 954 (Fla. 1st DCA 1994) (rehabilitative alimony); Childers v. Childers, 640 So.2d 108 (Fla. 4th DCA 1994( (same). Of course, if adultery does have an economic impact, its consideration is proper. See, e.g., Poe v. Poe, 522 So.2d 50 (Fla. 5th DCA 1988) (money spent on paramour and property sold to her at nominal cost).
Subsection (2) — “Economic Factors”
The second subsection of the alimony statute contains a non-exclusive list of “all relevant economic factors” that the court “shall consider” in awarding alimony As a result of this mandatory language, it is important for trial courts to include findings as to all of the factors listed in the statute; judgments lacking findings are often reversed. See, e.g., Pavese v. Pavese, 932 So.2d 1269 (Fla. 2d DCA 2006); Baig v. Baig, 917 So.2d 379 (Fla. 2d DCA 2005); Ondrejack v. Ondrejack, 839 So.2d 867 (Fla. 4th DCA 2003); Young v. Young, 816 So.2d 799 (Fla. 3d DCA 2002). Even a “blanket statement” in the judgment that all statutory factors have been considered may be insufficient. See, Parenteau v. Parenteau, 795 So.2d 1124 (Fla. 5th DCA 2001).
Subsection (2)(a) — Standard of Living During the Marriage
The marital standard of living may vary over the course of the marriage. In such cases the applicable standard is the one at the end of the marriage. See, Greene v. Greene, 895 So.2d 503 (Fla. 5th DCA 2005); Szuri v. Szuri, 759 So.2d 709, 712 (Fla. 3d DCA 2000), citing, inter alia, Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla. 1980) (standard is that “last shared by the parties”). The marital standard of living, however, is not a useful guide in awarding alimony where the parties lived beyond their means. Nichols v. Nichols, 907 So.2d 620 (Fla.; 4th DCA 2005). If the marital standard of living was maintained by the use or spending of nonmarital assets, those assets should be considered in determining the payor’s ability to pay alimony. See, Stacpoole v. Stacpoole, 856 So.2d 1131 (Fla. 1st DCA 2003). If the marital standard of living cannot be continued upon divorce, such a finding should be included in the judgment, to assist in any future modification of the alimony award if the payor’s ability to pay should increase. See, Schlesinger v. Emmons, 566 So.2d 583 (Fla. 2d DCA 1990).
Subsection (2)(b) — Duration of the Marriage
Florida case law characterizes marriages as either “short-term,” “gray area,” or “long-term” marriages. In a short-term marriage, the presumption is against an award of permanent alimony. See, e.g., Melvik v. Melvik, 669 So.2d 328 (Fla. 4th DCA 1996); Wattenmaker v. Wattenmaker, 358 So.2d 227 (Fla. 3d DCA 1978); Wright v. Wright, 613 So.2d 1330 (Fla. 4th DCA 1992). A “lump-sum” alimony award may also be improper in a particularly short-term marriage. See, e.g., Parker v. Parker, 405 So.2d 1021 (Fla. 2d DCA 1981) (about two years); Ward v. Ward, 476 So.2d 1296 (Fla. 4th DCA 1985) (two and one-half years); Lynch v. Lynch, 437 So.2d 234 (Fla. 5th DCA 1983) (five years, but parties’ financial resources were virtually identical). Obviously, the facts of a particular case may make permanent alimony appropriate on “hard” facts that favor the payee. See, e.g., Slimer v. Slimer, 112 So.2d 581 (Fla. 2d DCA 1959) (5½-year marriage, denial of alimony reversed; but wife had custody of two small children and would "not be required . . . to leave the household and procure employment"); Lagstrom v. Lagstrom, 662 So.2d 756 (Fla. 4th DCA 1995) (5½-year marriage; affirming permanent alimony despite lack of children, where wife was 48 years old and in "depressive" state that rendered her "non-functional," and she had "no ability to be self-supporting at the present time"); Volosin v. Volosin, 382 So.2d 733 (Fla. 2d DCA 1980) (5½-year marriage, wife 61 years old and in poor health).
The boundaries between the three categories of marriage duration are not concrete, but “short-term” marriages include those lasting up to six or seven years. See, e.g., Green v. Green, 672 So.2d 49 (Fla. 4th DCA 1996) (six years, permanent alimony award reversed); Segall v. Segall, 708 So.2d 983 (Fla. 4th DCA 1998) (reversing award, exact length of marriage unstated); Eager v. Eager, 696 So.2d 1326 (Fla. 3d DCA 1998) (affirming denial of award, exact length of marriage unstated); Kellerman v. Kellerman, 659 So.2d 1390 (Fla. 3d DCA 1995) (marriage "less than seven years," award reversed); Cornell v. Smith, 616 So.2d 629 (Fla. 4th DCA 1993) (seven-year marriage; award reversed); Kremer v. Kremer, 595 So.2d 214 (Fla. 2d DCA 1992) (marriage "only approximately six years"; award reversed); Siegel v. Siegel, 564 So.2d 226 (Fla. 5th DCA 1990) (marriage of "only six years"; award reversed); Fulks v. Fulks, 558 So.2d 205 (Fla. 2d DCA 1990) (six-year marriage; reversing award); Murray v. Murray, 598 So.2d 310 (Fla. 2d DCA 1992) (same); Siverling v. Siverling, 447 So.2d 997 (Fla. 5th DCA 1984) (six-year marriage; affirming denial of alimony); Shively v. Shively, 635 So.2d 1021 (Fla. 1st DCA 1994) (same).
In contrast to short-term marriages, in long-term marriages the presumption is in favor of permanent alimony. See, e.g., Schomberg v. Schomberg, 845 So.2d 257 (Fla. 2003) (24-year marriage); Cerra v. Cerra, 820 So.2d 398 (Fla. 5th DCA 2002) (same); Hall v. Hall, 721 So.2d 446 (Fla. 1st DCA 1998) (same). By process of elimination, in “gray area” marriages, there is no presumption in favor or against permanent alimony. See, e.g., Nelson v. Nelson, 721 So.2d 388 (Fla. 4th DCA 1998); Reynolds v. Reynolds, 668 So.2d 245 (Fla. 1st DCA 1996); Young v. Young, 677 So.2d 1301 (Fla. 5th DCA 1996); Zeigler v. Zeigler, 635 So.2d 50 (Fla. 1st DCA 1994).
Subsection (2)(c) — Age and Physical and Emotional Condition of Each Party
Although courts might consider the age and health of the parties, total financial dependence on a payor spouse is not required before permanent alimony can be awarded. Weider v. Weider, 402 So.2d 66 (Fla. 4th DCA 1981). As previously noted vis-à-vis short-term marriages, old age or poor condition of a payee spouse may make permanent alimony appropriate even in a relatively short-duration marriage; conversely, the poor health or condition of a payor may make permanent alimony inappropriate. See, e.g., Leone v. Leone, 577 So.2d 587 (Fla. 3d DCA 1991) (payor doctor could no longer practice due to heart surgery, payee was 36-year-old former waitress and in good health; award of rehabilitative alimony only was upheld).
Section (2)(c) — Financial Resources of the Parties
Note that the resources of the parties are to be considered after equitable distribution of the marital assets and debts. See, Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980); Paul v. Paul, 648 So.2d 1211, 1212-13 (Fla. 5t DCA 1995). In addition to the share of the marital estate each party is awarded, each party’s nonmarital assets may also be considered in determining alimony, whether the court is looking at a payee’s need, see, e.g., Gordon v. Gordon, 204 So.2d 734 (Fla. 3d DCA 1967), or a payor’s ability to pay. See, e.g., Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980), review denied, 392 So.2d 1378 (Fla. 1981). However, many cases hold that it is error to require a payee spouse to deplete capital assets to maintain his or her standard of living. See, e.g., Bloch v. Bloch, 688 So.2d 945 (Fla. 3d DCA 1997); DeCenzo v. DeCenzo, 433 So.2d 1316 (Fla. 3d DCA 1983). Only present circumstances may be considered, not possible future contingencies. See, e.g., Kernan v. Kernan, 495 So.2d 275 (Fla. 5th DCA 1986).
Subsection (2)(e) — Time Necessary for Job Training
This factor is primarily considered when one spouse seeks rehabilitative alimony (see, infra), but it may also be relevant to a payor’s ability to pay. See, Freilich v. Freilich, 897 So.2d 537 (Fla. 5th DCA 2005) (court should have considered whether payor’s abandonment of medical career, to enter law school, was in best interest of family before imputing medical income to him).
Subsection (2)(f) — Contributions of Homemaking, Child Care, and Career-Building
Where one spouse is the primary homemaker and child-rearer, that fact may militate in favor of permanent alimony to such spouse. See, e.g., Ordini v. Ordini, 701 So.2d 663 (Fla. 4th DCA 1997) (33-year-old wife in 12-year marriage entitled to permanent alimony where she had been full-time homemaker and mother). Being awarded primary custody of young children who may require a stay-at-home parent supports an award of permanent alimony. See, e.g., King v. King, 316 So.2d 322 (Fla. 4th DCA 1975). The payee spouse’s contributions toward the payor’s professional goals may also support a permanent alimony award. See, e.g., Gray v. Gray, 658 So.2d 607 (Fla. 2d DCA 1995) (noting that both parties worked while husband attended law school, but wife subsequently became stay-at-home mother on birth of parties’ children; held — denial of permanent alimony reversed). Conversely, a payee spouse’s status as a mere “ornament” may militate against a permanent alimony award, even in a long-term marriage. See, Lester v. Lester, 547 So.2d 1241 (Fla. 4th DCA 1989) (affirming award of no alimony in childless 23-year marriage where wife entered marriage with few assets and was awarded $35 million in equitable distribution).
Subsection (2)(g) — All Sources of Income Available
“Income” is statutorily defined as follows:
(7) “Income” means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker's compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government. United States Department of Veterans Affairs disability benefits and unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support.
§ 61.046(7), Fla. Stat. (2008).
Because the statute says “all sources,” “income” to be considered in determining alimony can include things other than wages or salaries, such as in-kind payments, see, Fitzgerald v. Fitzgerald, 912 So.2d 363 (Fla. 2d DCA 2005); trust income, see, Beck v. Beck, 852 So.2d 934 (Fla. 2d DCA 2003) (despite payor having elected to defer receipt of trust income); commissions, see, LaSala v. LaSala, 806 So.2d 602 (Fla. 4th DCA 2002); regular and continuous bonuses, see, Shrove v. Shrove, 724 So.2d 679 (Fla. 4th DCA 1999); and even gifts from family, when the gifts are made regularly. See, Ordini v. Ordini, 701 So.2d 663 (Fla. 4th DCA 1997); Weiser v. Weiser, 782 So.2d 986 (Fla. 4th DCA 2000).
Non-recurring gifts are not “income” for purposes of determining alimony. Sol v. Sol, 656 So.2d 206 (Fla. 3d DCA 1995); Bedell v. Bedell, 583 So.2d 1005 (Fla. 1991). A source of income must be “available” in order to be considered in an alimony claim. See, Zold v. Zold, 880 So.2d 779 (Fla. 5th DCA 2004) (court erred in holding that husband’s income was equivalent to pro-rata share of cash on hand of Subchapter S corporation in which husband held controlling interest; trial court failed to consider that corporation was required to retain portion of cash on hand for corporate operations; financial obligations imposed on husband in final judgment exceeded husband’s ability to pay). However, a spouse cannot voluntarily make the income unavailable in order to reduce his or her annual income. See, Geoghegan v. Geoghegan, 969 So.2d 482 (Fla. 5th DCA 2007) [court should have considered including income earned by husband that was annually contributed by him to his 401K plan, Supplemental Executive Retirement Plan (SERP), or medical savings account, for purpose of making ability-to-pay alimony calculation upon husband’s divorce, where contributions were voluntary and reduced apparent annual income available to husband]. A claim that a payor spouse has arranged his financial affairs or employment situation so as to shortchange the payee spouse is a valid matter to be explored in determining the payor’s real ability to pay alimony. Vriesenga v. Vriesenga, 981 So.2d 213 (Fla. 1st DCA 2006). Even when the parties misrepresent their income, the court must still attempt to establish alimony based on need, ability to pay, and the relevant statutory factors. Cunningham v. Cunningham, 918 So.2d 412 (Fla. 2d DCA 2006).
Income may also be imputed to a voluntarily unemployed or underemployed spouse, whether the spouse is the payor, see, e.g., Kovar v. Kovar, 648 So.2d 177 (Fla. 4th DCA 1994) or the payee. See, e.g., Rojas v. Rojas, 656 So.2d 563 (Fla. 3d DCA 1995). However, it is frequently more difficult to successfully impute income to a payee spouse, who may have been out of the job market for a long period of time and who may also be the probable primary residential parent of the parties’ minor children. See, e.g., Greene v. Greene, 895 So.2d 503 (Fla. 5th DCA 2005) (reversing imputation of income to payee); LaFlam v. LaFlam, 854 So.2d 809 (Fla. 2d DCA 2003) (same); Tarnawski v. Tarnawski, 851 So.2d 239 (Fla. 4th DCA 2003). In either case, whether when imputing income to a payee spouse, id., or to a payor spouse, see, e.g., Brooks v. Brooks, 602 So.2d 630 (Fla. 2d DCA 1992) (testimony of expert that jobs were available to former husband in his field of expertise that would enable him to duplicate his pre-divorce pay did not support imputing greater income to husband where expert did not testify to any specific job opportunities and husband showed that he had aggressively sought higher paying positions), evidence about specific job opportunities must be presented. Also, net, not gross, figures should be used, or imputation may be reversed. See, e.g., Warren v. Warren, 629 So.2d 1079 (Fla. 3d DCA 1994); Wendroff v. Wendroff, 614 So.2d 590 (Fla. 1st DCA 1993).
The “Catch-All” Provision — Any Other Factor Necessary
At the end of subsection (2) of Section 61.08 is an un-numbered provision that states that the court may consider any other factor necessary to do equity and justice between the parties. While subsection (1) specifically references adultery, the “catch-all” provision at the end of subsection (2) allows for other types of misconduct or inequitable behavior to be considered. For example, a payor’s concealment of spending and of his income during the marriage may be considered and rectified by imputing income to him. See, e.g., Rabbath v. Farid, No. 1D07-6583, &under;&under;&under; So.2d &under;&under;&under;, 2009 WL 127862 (Fla. 1st DCA March 17, 2009) (also includes dissipation of assets during adulterous affair). Other than misconduct, certain “unusual facts” may be considered as well. See, e.g., Russell v. Russell, 890 So.2d 1148 (Fla. 4th DCA 2004) (trial court acted within its discretion in awarding wife lump-sum alimony of $625,000 to be paid from husband's one-half interest in equity in marital home, combined with substantially reduced amount of permanent-periodic alimony, despite claim that lump-sum alimony award left husband with only one-fourth of marital assets; court found that it was important for wife and children to be able to remain in house, that they would be able to afford to do so only with continued generosity of wife's parents, that using lump sum as substitute for higher periodic alimony award would be best way to accomplish that, and that husband was understating his income). Domestic abuse that has economic impacts can also be considered under the catch-all provision. See, Garces v. Garces, 704 So.2d 1108 (Fla. 3d DCA 1998).
Another factor not mentioned in the alimony statute, though not falling under the rubric of misconduct or inequitable conduct, but which can obviously affect an alimony award, is whether a payee has waived his or her right to alimony. Although temporary alimony (i.e., alimony during the pendency of the divorce litigation) cannot validly be waived because it is contrary to public policy, see, e.g., Belcher v. Belcher, 271 So.2d 7 (Fla. 1972), other forms of alimony (or the right to modify such alimony) may be waived in a valid prenuptial or postnuptial agreement, without offending public policy. See, Filipov v. Filipov, 717 So.2d 1082, 1085 (Fla. 4th DCA 1998), citing Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980). However, any such waivers must be clear and unequivocal. See, Filipov v. Filipov, supra (finding no waiver); Newsome v. Newsome, 456 So.2d 520 (Fla. 1st DCA 1984) (same).
2. HOW TO MODIFY IT
I would like to acknowledge the work of Dori Foster-Morales, Esquire in the area of modification of alimony for her assistance with this material. I requested her permission to use some of her work from her past presentation on this subject given the concise and easy to follow format that she created.
I. CRITERIA FOR MODIFICATION
Section 61.14(1), Florida Statutes provides that when the parties enter into an agreement for payments for, or instead of, support, maintenance, or alimony, or when support payments are ordered by the court as the result of a dissolution of separate maintenance proceeding, then if the financial ability or the circumstances of either party changes, or the child owed the duty of support reaches majority, either party may apply to the appropriate court for an order decreasing or increasing the amount of support, maintenance or alimony, and the court has jurisdiction to make whatever orders equity requires considering the new circumstances and the financial abilities of the parties.
VENUE FOR MODIFICATION
Section 61.14(1), Florida Statutes, also provides the proper venue for bringing modification actions. They are to be brought in the circuit.
a) In which either of the parties resided at the date of the execution of the agreement,
b) in which either party resided at the date of the application, or
c) in which the agreement was executed, or in which the order was rendered.
Section 61.14(2), Florida Statutes, provides that when an order or agreement is modified, the party having the obligation to pay shall pay only the amount of support, maintenance, or alimony directed in the new order, and the agreement or earlier order is modified accordingly.
An alimony award can only be modified upon a clear showing that there has been a substantial change in the financial circumstances of either party occurring after the entry of the order awarding alimony. 61.14, Florida Statutes. Cleary v. Cleary, 743 So.2d 1163 (Fla. 5th DCA 1999); Springstead v. Springstead, 717 So.2d 203 (Fla. 5th DCA 1998); Metzler v. Metzler, 356 So.2d 1253 (Fla. 3rd DCA 1978), cert. den., 370 So.2d 460.
Generally, increases in the payor’s income alone will not justify modification without a showing of an increase in the payee’s needs. Frantz v. Frantz, 453 So.2d 429 (Fla. 3rd DCA 1984), rev. den., 459 So.2d 1040.
Proof of substantial change in financial circumstances of “either party” may properly support a modification of alimony, but court is not required to modify alimony just because ability to pay has changed or just because the need of the recipient has changed, but may look at the equitable circumstances, and modify the alimony only if equity so dictates. Bedell v. Bedell, 583 So.2d 1005 (Fla. 1991).
How to Plead for Modification
In a petition to modify alimony, the moving party must show three fundamental prerequisites:
a) A substantial change in circumstances. Chastain v. Chastain, 73 So.2d 66 (Fla. 1954), Fla. Stat. §61.14(1).
b) The change was not contemplated at the time of the final judgment of dissolution; Withers v. Withers, 390 So.2d 453 (Fla. 2nd DCA 1980), rev. den., 399 So.2d 1147 (Fla. 1981); Dykes v. Dykes, 712 So.2d 1189 (Fla. 1st DCA 1998).
c) The change is sufficient, material, involuntary and permanent in nature; Pimm v. Pimm, 601 So.2d 524 (Fla. 1992) (superseded in part by Section 61.14, Florida Statutes, regarding burden of proof for modifying obligation set by agreement); Whetstone v. Whetstone, 710 So.2d 749 (Fla. 1st DCA 1998); Hanskat v. Hanskat, 716 So.2d 247 (Fla. 1st DCA 1998).
Sufficiency of Pleadings
Pleadings must set forth with enough certainty and specificity allegations sufficient to inform the adversary of what is proposed to be proved so that he or she has the opportunity to prepare a defense. Frankel v. Ellerin, 684 So.2d 333 (Fla. 4th DCA 1997).
The change in circumstances must be alleged to have occurred subsequent to last judgment or order awarding alimony. Johnson v. Johnson, 537 So.2d 637 (Fla. 2nd DCA 1998); Zimerle v. Zimerle, 650 So.2d 155 (Fla. 1st DCA 1995).
In an action to enforce a final judgment, court may not enter an order terminating alimony where such a ruling was beyond the scope of the pleadings. Sabine v. Sabine, 834 So.2d 959 (Fla. 2nd DCA 2003).
II. AUTHORITY TO MODIFY ALIMONY
The court entering the support order generally retains jurisdiction to enforce the award and to consider modification at any time during the period provided for support to be paid. Kelsey v. Kelsey, 636 So.2d 77 (Fla. 4th DCA 1994).
Concerning the enforcement and modification of foreign alimony awards, when the Florida court issues a spousal order, it has continuing exclusive jurisdiction over that order throughout the existence of the support obligation. A Florida court may enforce but not modify a spousal support order issued by a foreign court which has continuing exclusive jurisdiction over that order under the laws of that state. Sections 88.2051(6) and 88.2061(3), Florida Statutes.
When Florida has continuing exclusive jurisdiction over a support order, it may act as a responding tribunal to enforce or modify the order. Section 88.2061, Florida Statutes. When the party subject to the continuing exclusive jurisdiction of the tribunal no longer resides in the issuing state, the tribunal may apply Section 88.3181, to receive assistance from another state with the receipt of evidence and to conduct discovery. Section 88.2061(2). Of course, Florida has to have acquired personal jurisdiction over the nonresident party in order to enforce or modify a support order.
Modifying Different Form of Alimony
There are five basic types of alimony awards, and whether the court ordered award can be modified often depends on the type and the purpose of the alimony award.
a) Permanent Periodic Alimony. Permanent periodic alimony is always subject to modification, unless the right is specifically waived by the parties. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Any modification, however, must be made during the period when payments are required to be made. Modification of permanent alimony depends upon proof of a substantial change of circumstances affecting the need of one party and/or the ability to pay of the other party. The automatic reduction of permanent alimony is impermissible; generally, it is error to provide for an automatic future change or termination of alimony based upon the anticipated occurrence of a future event; however, such an automatic reduction would not be improper where the evidence supports a finding that the receiving spouse’s financial position will in fact change in the future. Loss v. Loss, 714 So.2d 1093(Fla. 4th DCA 1998); Hitt v. Hitt, 571 So.2d 79 (Fla. 4th DCA 1990).
b) Lump Sum Alimony. The amount of lump sum alimony awarded is not modifiable, unless jurisdiction is expressly retained for such purpose, by agreement of the parties. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Benson v. Benson, 369 So.2d 99 (Fla. 4th DCA 1979); Bentz v. Bentz, 535 So.2d 613 (Fla. 2nd DCA 1988) (Lump sum alimony was not modifiable absent agreement of the parties). The manner of its payment, however, may be modified. Miller v. Miller, 455 So.2d 436 (Fla. 2nd DCA 1984), rev. den., 462 So.2d 1107.
c) Rehabilitative Alimony. Rehabilitative alimony is subject to modification or termination. Pujals v. Pujals, 414 So.2d 228 (Fla. 3rd DCA 1982), but the request must be made before the rehabilitative period expires. Veach v. Veach, 407 So.2d 308 9Fla. 4th DCA 1981); Kelsey v. Kelsey, 636 So.2d 77 (Fla. 4th DCA 1994). Termination of rehabilitative alimony is proper only when there are findings that due to a material change in circumstances since the original decree, that either the recipient no longer needs the assistance of rehabilitative alimony, or that the payor lacks the ability to pay. Weiser v. Weiser, 657 So.2d 1276 (Fla. 4th DCA 1995); Vaccato v. Pustizzi, 648 So.2d 1206 (Fla. 4th DCA 1995). An award of rehabilitative alimony may be converted to permanent alimony under appropriate circumstances. Yohem v. Yohem, 324 So.2d 160 (Fla. 4th DCA 1975) [See discussion of topic later in outline].
d) Nominal Alimony. Nominal alimony may be awarded when the court finds the requisite entitlement to alimony, but due to insufficient resources available at the time of final hearing, it cannot award sufficient alimony to meet the needs of the payee. The nominal award reserves jurisdiction for the court to later modify the amount of alimony upon petition of the payee, should the financial conditions of the payor spouse improve. Ellis v. Ellis, 699 So.2d 280 (Fla. 5th DCA 1997) (award of $1.00 in permanent alimony to wife to leave open the possibility of increasing the alimony should the value of the husband’s pension increase, since husband could then pay increased alimony from his social security disability income currently being used for his own support); Davis v. Davis, 691 So.2d 626 (Fla. 5th DCA 1997); Strysick v. Strysick, 673 So.2d 190 (Fla. 4th DCA 1996); Rogers v. Rogers, 746 So.2d 1176 (Fla. 2nd DCA 1999); See also Stock v. Stock, 693 So.2d 1080 (Fla. 2nd DCA 1997) (although the court found entitlement to alimony, husband’s ability to pay was limited by his child support obligations, so court properly reserved jurisdiction to award alimony in the future as each child reached emancipation, and the husband’s ability to pay improved); Husband agreed to pay alimony but subsequently lost his job and alimony was not scheduled to begin until after sale of house. Once house was sold, court found Husband’s income had been permanently reduced. Trial Court should have awarded nominal alimony instead of terminating. Brewer v. Brewer, 898 So.2d 986 (Fla. 2nd DCA 2005).
e) Bridge the Gap Alimony. Another take on the lump sum alimony award is Bridge the Gap Alimony. This alimony is lump sum alimony paid in installments to help one spouse adjust financially to life after marriage. See Borchard v. Borchard, 730 So.2d 748 (Fla. 2nd DCA 1999). This type of alimony is generally awarded after a short-term marriage to allow a spouse to bridge the gap between the high standard of living enjoyed during the brief marriage and the more modest standard of single life. See Landow v. Landow, 824 So.2d 278 (Fla. 4th DCA 2002).
Alimony Provided for by Agreement
Prior to the 1993 amendment to Section 61.14, Florida Statutes, which states: “the proof required to modify a settlement agreement and the proof required to modify an award established by court order shall be the same,” it had been generally held that there was a heavier burden of proof to modify support that was provided for by agreement than otherwise rested on the party seeking a modification of a court ordered alimony award, see Pimm v. Pimm, 602 So.2d 534 (Fla. 1992). Today, the burden of proving modification is the same. Pratt v. Pratt, 645 So.2d 510 (Fla. 3rd DCA 1994).
In cases where the payments are not termed “alimony,” the court may look at other factors to determine whether the intent and purpose of the payments is a property settlement or support. The provision for termination of payments upon marriage, the modifiability of the payments, and the treatment of the payments for tax purposes, are several of these factors. Kidd v. Kidd, 695 So.2d 439 (Fla. 4th DCA 1997) (Alimony provision for payments enduring ten (10) years which are terminable on death or remarriage was found to be subject to modification, particularly where parties treated provision as alimony for tax purposes).
Effectiveness of Waiver of Right to Modify
The right to alimony and the right to modification may be waived by agreement of the parties. Turner v. Turner, 283 So,2d 700 (Fla. 4th DCA 1980), rev. den., 392 So.2d 1381; Cunningham v. Cunningham, 499 So.2d 880 (Fla. 1st DCA 1986) (Language of agreement evinced clear intention that provision for alimony in agreement would be controlling and could only be modified as authorized by agreement).
Florida recognizes the parties’ right to contract away the right to seek modification of alimony awards, but a “General Release” does not bar modification of alimony, as right to modification depends on future change of circumstances, not a cause of action or claim either party had at the time of the agreement. Vargas v. Vargas, 654 So.2d 963 (Fla. 5th DCA 1995); Emmel v. Emmel, 671 So.2d 282 (Fla. 5th DCA 1996) (Agreement did not clearly express that provisions were not modifiable.).
Waiver of right to modify alimony must be specifically expressed by clear language enforcing an intent to waive all such rights in the future. Filipov v. Filipov, 717 So.2d 1082 (Fla. 4th DCA 1998); Sasnett v. Sasnett, 683 So. 2d 177 (Fla. 2nd DCA 1996).
III. CHANGES IN ABILITY TO PAY
Permanent Reduction in Ability to Pay
Proving inability to pay
a) Showing a reduction in the payor spouse’s income alone will not justify modification of an alimony award. The payor’s present inability to pay as a whole must be shown. Schaefer v. Schaaefer, 344 So.2d 902 (Fla. 3rd DCA 1977); Emmel v. Emmel, 671 So.2d 282 (Fla. 5th DCA 1996) (No reduction in alimony was justified by decline in husband’s tool business income where final judgment had noted that money from the tool business was not to be relied on for alimony.).
b) When determining whether the change in circumstances resulted in an inability to pay support, court could properly consider former husband’s pension benefits as part of the ability to pay alimony along with his employment income, even though former wife had waived any interest in pension in parties’ settlement agreement, when former husband petitioned for downward modification of alimony due to substantial decrease in income. Kinne v. Kinne, 599 So.2d 191 (Fla. 2nd DCA 1992).
c) A change in the tax law which had the effect of reducing payor’s ability to pay, and which was anticipated, but not ruled upon or figured into the alimony award as it was only speculative at the time of final judgment could serve as a basis for downward modification action. Allison v. Allison, 554 So.2d 1196 (Fla. 1st DCA 1990) (The court granted the former husband’s petition for a downward modification of alimony because former husband’s income was reduced by Tax Reform Act which practically eliminated his tax shelters and was not anticipated at time of final judgment, although former husband was concerned about possible effects at final hearing, but the specific effect on his income was not then known).
Proving change was involuntary
a) It must be determined that the reduction in ability to pay must not be the result of a voluntary act, and that there was no intent of evading the alimony obligation. Denny v. Denny, 334 So.2d 300 (Fla. 1st DCA 1976).
b) Pagano v. Hunt, 745 So.2d 478 (Fla. 5th DCA 1999) (no modification granted where the changes in circumstances alleged by the former husband were that he owed the IRS over $33,000.00 and that the arrearage on his alimony obligation had been reduced to judgment and had reached $100,000.00, but was not ordered to be paid immediately.); See also Cowie v. Cowie, 564 So.2d 533 (Fla. 2nd DCA 1990) (Alimony may not be reduced solely because the payor has voluntarily incurred new debt which makes it difficult to meet the support obligation).
c) Trial court erred in reducing former husband’s support obligation based on his allegation of reduced income because husband had not satisfied good faith test concerning his unemployment and search for reemployment. Furthermore, the trial court should have allowed the former wife to inquire into the subsequent wife’s finances and husband’s pre-divorce stock transactions which were relevant to former wife’s charges that the husband had reduced his employment in order to keep from paying support and was conspiring with present wife to hide income and assets. Hayden v. Hayden, 662 So.2d 713 (Fla. 4th DCA 1995).
Proving change is permanent
a) Alimony should be modified upon showing of a substantial involuntary and permanent change of financial circumstances. Levin v. Levin, 613 So.2d 556 (Fla. 4th DCA 1993) (Payor’s income dropped from $80,000.00 to $13,000.00 and it had maintained at that level for two years.) Showing a substantial change existed for one year or more is generally a showing of sufficient permanence to grant relief. However, in some situations, the permanency of the change can be proved immediately. Bennett v. Dept. of Revenue, 664 So.2d 33 (Fla. 5th DCA 1995).
b) The amount of alimony awarded in a final judgment of modification must be based on both the needs of the payee and the payor’s ability to pay, just as it is in an original order. Eyster v. Eyster, 503 So.2d 340 (Fla. 1st DCA 1987), rev. den., 513 So.2d 1061; Walton v. Walton, 537 So.2d 658 (Fla. 1st DCA 1989); Bingemann v. Bingemann, 551 So.2d 1228 (Fla. 1st DCA1989).
Temporary Reduction in Ability to Pay
a) Although temporary involuntary unemployment may not constitute sufficient grounds for a permanent modification of support, it can be the basis for an order temporarily suspending alimony and child support especially where the evidence supports a finding that the payor is diligently seeking re-employment so that the unemployment should most likely be temporary. In such cases, the support arrears should not continue to accrue. See Bennett v. Dept. of Revenue, 664 So.2d 33 (Fla. 5th DCA 1995).
b) It is error to permanently reduce alimony where a permanent reduction in income is not proven. However, if requested, temporary relief may be granted upon a showing of a temporary change of circumstances. Gardiner v. Gardiner, 705 So.2d 1018 (Fla. 5th DCA 1998) (Husband had testified that his involuntary unemployment was not permanent and he expected to be rehired, thus he was not entitled to have alimony modified, but was entitled to have payments suspended during current period of unemployment); Whetstone v. Whetstone, 710 So.2d 749 (Fla. 4th DCA 1998).
Voluntary change in employment
a) Court must apply “good faith” test in determining whether to grant relief to payor spouse whose reduction in income is due to a voluntary change of employment or lifestyle. First, the court must determine whether the job change was done intentionally to avoid alimony obligation, and second, whether the payor is currently acting in good faith to increase earnings back to the previous level. McConnel v. McConnel, 552 So.2d 237 (Fla. 1st DCA 1989) (Allowing the entry of an order temporarily reducing alimony payments during such time as necessary for the payor to establish himself in his new career.).
b) While the court may grant a temporary suspension of reduction of alimony if the “good faith test” is met, a petition for modification may be denied where the decreased or inability to pay was voluntary or not permanent. Hanskat v. Hanskat, 716 So.2d 347 (Fla. 1st DCA 1998) (Husband not entitled to modification of alimony obligation where he had left employment voluntarily, and while his new business was not quite earning up to its potential at the time of hearing, the husband expected that his income would eventually return to its prior level, thus, he failed to show a permanent change in circumstances.).
Participation in strike
a) Reep v. Reep, 565 So.2d 614 (Fla. 3rd DCA 1990), involves a former husband who lost all of his income by participating in a pilot’s strike against Eastern airlines. The trial court dismissed his petition for modification of alimony, finding that participation in the strike was a voluntary act and legally insufficient to support modification. The appellate court reversed, holding that the former husband’s unemployment was involuntary, and distinguishing this case form Scapin v. Scapin, 547 So.2d 1012 (Fla. 1st DCA 1989), as Reep had involved a legal strike and the former husband had continued to seek re-employment after the strike. The fact that the strike was legal bore on the court’s finding of good faith on the part of the former husband in the exercise of his lawful rights.
b) Scapin v. Scapin, 547 So.2d 1012 (Fla. 1st DCA 1989), which held that an obligated spouse who participating in an illegal strike by air traffic controllers voluntarily reduced his income and therefore was not entitled to a reduction in his alimony obligation.
Imputation of Income
a) Concerning an initial determination of alimony award, where payor spouse quit a good-paying job out of spite or frustration prior to the dissolution, and then, after a good faith, diligent search, was truly unable to find a job with a comparable salary, the court cannot impute income to that payor at the old, higher income level, where it is not possible for the court to make findings that there is an actual ability to earn more than is currently being earned. Ensley v. Ensley, 578 So.2d 497 (Fla. 5th DCA 1991).
b) But see Work v. Provine, 632 So.2d 1119 (Fla. 1st DCA 1994) (In deciding enforcement action, court held that because ex-husband had voluntarily quit well-paying job due to his belief that his position was in jeopardy, the income that he was earning at the job is the income he is capable of earning and should be imputed to him despite his subsequent search in another city which has not yet resulted in similar permanent employment).
c) Court cannot impute income unless there is a finding that payor is earning less than he could, based on a showing that payor is employable or that he has capability of earning more by using his best efforts. In this case, payor became completely disabled; therefore, alimony should have been terminated. Gruber v. Gruber, 857 So.2d 329 (Fla. 2nd DCA 2003).
Impact of Retirement
The Supreme Court of Florida has addressed the impact of retirement on support obligations in the case of Pimm v. Pimm, 601 So.2d 534 (Fla. 1992). The Court found that although it would be a better practice to incorporate consideration of retirement and what will happen in the event of retirement in an agreement or final judgment, silence in that regard should not preclude consideration of a reasonable retirement as part of the total circumstances in order to determine if a sufficient change in circumstances exists to warrant a modification of alimony. Pimm set forth the following criteria for modification in cases of voluntary retirement:
a) In determining whether a voluntary retirement is reasonable, the court must consider the payor’s age, health and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire.
b) Based upon the wide spread acceptance of 65 or later, the payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty.
c) The court further found that even at the age of 65 or later, the payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty.
d) Thus, the court should consider the needs of the receiving spouse and the impact a termination or reduction of alimony would have on him or her.
e) In that determination, the court should also consider the assets of the parties and whether the provision for alimony was contained in an agreement between the parties or solely in a judgment of the court. (Note: The 1993 amendment to §61.14, Florida Statutes, implicitly changed the burden of proof cited by Pimm and made the burden to modify support equal, whether it was pursuant to agreement or established by court order.).
In Wiedman v. Wiedman, 610 So.2d 681 (Fla. 5th DCA 1993), the Former Husband failed to meet his burden for modification where, although his early retirement at 61 was involuntary due to poor health, he did not present evidence that he was unable to obtain alternate employment suitable to his health conditions, and he admitted to being physically capable of working. Distinguished by Cleary v. Cleary, 743 So.2d 1163 (Fla. 5th DCA 1999) (Court allowed modification of alimony due to early retirement caused by poor health, especially where health problems precluded employment in same line of work, which was only line of work former wife was qualified for).
Post judgment retirement is a substantial change of circumstances which may be considered along with other relevant circumstances in action to modify alimony. McManus v. McManus, 638 So.2d 1051 (Fla. 2nd DCA 1994) (Standard of living to be used in determining needs in a modification of alimony proceeding is the standard established during the marriage, not that existing at the time of the modification action).
Increase in Ability to Pay
Bedell v. Bedell, 583 So.2d 1005 (Fla. 1991). A substantial increase in the financial ability of paying spouse, standing alone, may justify but does not require an increase in alimony. The Supreme Court in Bedell stated “In fact, we would expect that a raise in alimony would be ordered when no increased need was shown only in extraordinary cases where equitable considerations were particularly compelling.”
The need for additional alimony must be determined based upon the prior standard of living during the marriage, regardless of post-dissolution increase in the financial ability of the payor spouse. Szuri v. Szuri, 759 So.2d 709 (Fla. 3rd DCA 2000). (The payor’s ability to pay had increased twenty years after the dissolution, but the needs of the payee were not shown to have increased based on the standard of living at the time of the dissolution).
A substantial increase in the ability to pay is sufficient ground to petition for modification of alimony in cases where needs of recipient had not been met by original alimony award, such as when payor was temporarily earning less at time of final hearing than he or she would be earning upon completion of schooling or training being pursued. See Arce v. Arce, 566 So.2d 1308 (Fla. 3rd DCA 1990) Schlesinger v. Emmons, 566 So.2d 583 (Fla. 2nd DCA 1990) (Former husband’s receipt of inheritance created a substantial change of circumstances and was sufficient in itself to support an increase in alimony where the needs of the wife had not been met in initial award.)
IV. CHANGES IN NEED
Decrease in Need
At time of final hearing of dissolution of marriage, wife was a co-tenant of funds in joint accounts with her mother, and she testified that she was not entitled to the funds during the life of her mother, but would inherit them upon the mother’s demise. Therefore, it was an unanticipated and substantial change of circumstances when the former wife actually received her inheritance post-dissolution, so that termination of alimony was justified. Selembo v. Selembo, 591 So.2d 1112 (Fla. 2nd DCA 1992); Brock v. Brock, 690 So.2d 737 (Fla. 5th DCA 1997) (Actual receipt of expected inheritance is a substantial change in circumstances).
To the extent a subsequent spouse or companion contributes to the expenses of the payee spouse and thereby decreases the need of the payee spouse, the resources of that third party may be considered in an action for modification.
a) Where former wife was living with a boyfriend who was paying the rent, groceries, and paid for a maid, the assistance in living expenses to former wife must be taken into consideration in determining whether a rehabilitative alimony award to recipient spouse should be continued. Bentzoni v. Bentzoni, 442 So.2d 235 (Fla. 5th DCA 1983).
b) The fact that a boyfriend did yard work and maintenance work worth $132 and otherwise contributed $600 a month to the household required reduction in alimony to $1 per year for so long as the wife’s needs were met. Pill v. Pill, 583 So.2d 1114 (Fla. 5th DCA 1992).
c) But see Robinson v. Robinson, 788 So.2d 1092 (Fla. 4th DCA 2001) (where the plain language of the parties’ marital settlement agreement provided for termination of alimony upon the wife’s cohabitation with another male, the trial court improperly interfered with the parties’ agreement by requiring consideration of a “financial impact as a prerequisite to modification of alimony; based upon the parties’ agreement approved by the court and incorporated into the final judgment, the court should not have considered the financial impact of the cohabitation).
Generally, it is error to provide for an automatic, future change in alimony, however, where the evidence is clear that the receiving spouse’s financial position will change in the future, the court may order an automatic future reduction in alimony. Loss v. Loss, 714 So.2d 1093 (Fla. 4th DCA 1998) (Proper to provide for automatic reduction in alimony in amount of former wife’s monthly mortgage payment to begin one month after the final payment of that mortgage).
Orders which automatically increase or reduce alimony award when child or children reach majority without the requisite showing of an increase or decrease in need are impermissible. Swanston v. Swanston, 746 So.2d 566 (Fla. 1st DCA 1999) (Held wife not entitled to automatic increase in alimony when child reaches majority; automatic reduction of permanent alimony award when youngest child reached majority was not permissible).
Increase in Need
Generally, an increase in the needs of the recipient spouse may justify modification of alimony, as long as payor has the financial ability. Kaufman v. Kaufman, 541 So.2d 743 (Fla. 3rd DCA 1989) (Holding that the obligee spouse need not deplete his or her capital assets in order to maintain a standard of living); England v. England, 520 So.2d 699 (Fla. 4th DCA 1988) (Alimony should not be increased absent proof of increased need for support and other spouse’s ability to meet increased obligation).
The effect of inflation on an original alimony award may be considered by the trial court in a petition for alimony modification. Rosen v. Rosen, 528 So.2d 42 (Fla. 3rd DCA 1988), rev. den., 537 So.2d 569; see also Waldman v. Waldman, 530 So.2d 87 (Fla. 3rd DCA 1988) (It should be demonstrated how the inflation impacts specifically on the individual); England v. England, 520 So.2d 699 (Fla. 4th DCA 1988) (Court took judicial notice of cost of living increase.); Emmel v. Emmel, 671 So.2d 282 (Fla. 5th DCA 1996) (Increase in cost of living alone will not justify increase in alimony if overall economic circumstances of party have not deteriorated).
A substantial change in circumstances demonstrating the former wife’s increased needs was proven where former wife had lost job and could not find another position for over two years and had to move in with daughter and help in daughter’s household in exchange for room and board. Kartzmark v. Kartzmark, 709 So.2d 583 (Fla. 4th DCA 1998) (Proper to increase wife’s alimony).
Florida Statutes 61.14(1)(b) “Supportive Relationships”
Florida Statute 61.14 has been modified to provide for a termination in alimony upon establishment of a supportive relationship. Fla.Stat. 61.14(b) states:
In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question. The court shall give consideration, without limitation, to circumstances, including, but not limited to, the following, in determining the relationship of an obligee to another person:
a. The extent to which the obligee 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.
b. The period of time that the obligee has resided with the other person in a permanent place of abode.
c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.
d. The extent to which the obligee or the other person has supported the other, in whole or in part.
e. The extent to which the obligee or the other person has performed valuable services for the other.
f. The extent to which the obligee or the other person has performed valuable services for the other's company or employer.
g. Whether the obligee and the other person have worked together to create or enhance anything of value.
h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.
i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.
j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.
k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.
Right to Modification or Termination based on Supportive Relationship
When payee spouse is in a “supportive relationship”, such that her fiancé pays for all of her expenses, and the payor spouse/Husband sought termination of alimony based on his retirement at age 65 and the Former Wife’s “supportive relationship”, the Court should have reduced alimony award to a nominal award, which would allow subsequent modification of parties’ circumstances changed in the future. Zeballos v. Zeballos, 951 So.2d 972 (Fla. 4th DCA 2007).
Standard of review for modifications based on supportive relationships is a mixed question of law and fact, which results in a mixed standard of review. The trial court’s factual findings are reviewed based on whether there is substantial competent evidence to support the findings. The trial court’s conclusions as to whether the facts established result in a finding that the payee spouse is involved in a supportive relationship is reviewed de novo. Fact that parties did not have joint bank accounts was not sufficient to make factual finding that the parties do not “pool their assets for purposes of living expenses”. Pooling of assets can be from providing goods and services to one another even if there is no joint account. Moreover, the payee spouse need not be “completely dependent” on the cohabitant before finding that there is a “supportive relationship”. Buxton v. Buxton, 963 So.2d 950 (Fla. 2nd DCA 2007)
Termination of Support (Pre-Fla. Stat. 61.14(1)(b) “Supportive Relationships”)
Remarriage terminates party’s entitlement to permanent periodic alimony as a matter of law. Keister v. Keister, 458 So.2d 32 (Fla. 4th DCA 1984); however, remarriage does not automatically terminate rehabilitative alimony, but is only one factor to be considered. Vaccato v. Pustizzi, 648 So.2d 1205 (Fla. 4th DCA 1995); Frye v. Frye, 385 So.2d 1385 (Fla. 2nd DCA 1980); Winkles v. Winkles, 566 So.2d 68 (Fla. 2nd DCA 1990) (While there is no rule for automatic termination of rehabilitative alimony upon remarriage, the court can consider remarriage as a circumstance which might eliminate the need for rehabilitative alimony).
Where a marital settlement agreement provided for alimony until the wife lived in a “conjugal relationship,” court held that sharing her bed but not her dresser drawers and not contributing to or receiving support, justified the continuation of alimony. Herrero v. Herrero, 528 So.2d 1286 (Fla. 2nd DCA 1988).
Cohabitation alone cannot support termination or reduction of alimony without finding that there was a substantial change of economic circumstances caused by the cohabitation. Cheney v. Cheney, 741 So.2d 565 (Fla. 4th DCA 1999); Springstead v. Springstead, 717 So.2d 203 (Fla. 5th DCA 1998) (Cohabitation alone is not sufficient basis to modify alimony).
In 2005, Florida statutory law was changed to address the effect of a supportive relationship on alimony. The amended statute sets forth factors for the court to consider in deciding a petition to terminate alimony based on cohabitation.
Relevance to Ability to Pay (Pre-Fla. Stat. 61.14(1)(b) “Supportive Relationships”)
It is improper for the court to consider the income of the former husband’s second wife in an action to modify the former husband’s alimony obligation, except as it may relate to the former husband’s ability to pay their joint bills. Harmon v. Harmon, 523 So.2d 187 (Fla. 2nd DCA 1988).
The financial status of a successor spouse is ordinarily irrelevant. An exception exists if it is demonstrated that a party owing alimony has deliberately limited his or her income for the purpose of reducing the alimony obligation and is living off the income of a successor spouse. See Hayden v. Hayden, 662 So.2d 713 (Fla. 4th DCA 1995).
Relevance to Need (Pre-Fla. Stat. 61.14(1)(b) “Supportive Relationships”)
The wife’s modest, not necessarily permanent, economic improvement resulting from sharing expenses of home and car with a man was not enough to authorize modification. Townsend v. Townsend, 585 So.2d 468 (Fla. 2nd DCA 1991).
Court must take into consideration the support the payee is receiving from the companion and then determine if such warrants a modification based on substantial change of circumstances. MacLaren v. MacLaren, 616 So.2d 72 (Fla. 4th DCA 1996).
A roommate’s income cannot be imputed to a party. The amount could be considered, however, relevant to any reduction to a party’s living expenses. McCall v. McCall, 616 So.2d 607 (Fla. 2nd DCA 1993).
VI. ISSUES SPECIFIC TO REHABILITATIVE ALIMONY
Proving Entitlement to Modification
To modify rehabilitative alimony, the wife must show that, despite her reasonable diligent efforts, she has not been rehabilitated as planned. Mann v. Mann, 523 So.2d 804 (Fla. 3rd DCA 1988).
To entitle wife to modification of rehabilitative alimony, either by extension or conversion, into permanent periodic alimony, spouse must show not only change of circumstances, but that due to no fault of recipient, that the rehabilitative plan did not work out. Saez-Ortiz v. Saez-Ortiz, 560 So.2d 1375 (Fla. 5th DCA 1990) (Court should consider the spouse’s progress towards achieving financial independence, the spouse’s health, any disabilities, the market for the spouse’s skills, and whether additional training is needed, when determining, rehabilitation has occurred. Pollack v. Pollack, 722 So.2d 283 (Fla. 5th DCA 1998).
Modification is not appropriate where Former Wife received rehabilitative alimony and accomplished rehabilitation. Former Husband sought reduction in alimony based on Former Wife’s increased income. Because Former Wife’s rehabilitation was anticipated, modification was denied. Yangco v. Yangco, 901 So.2d 217 (Fla. 2nd DCA 2005).
Goal of Self-Support
Self-support, in a rehabilitative alimony context, means more than obtaining a job and an “income.” A divorced person is entitled to live in a manner reasonably commensurate with the standard established by the husband during the course of a long-term marriage. Paulsen v. Paulsen, 603 So.2d 1317 (Fla. 1st DCA 1992) (Where the trial court has fashioned a complicated and lengthy rehabilitative plan suited to the particular needs of the parties, the court is entitled to monitor the progress of that plan and make necessary adjustments to it whenever a party is able to show a material discrepancy between the rehabilitative progress the court anticipated and the degree of rehabilitation actually achieved by the recipient spouse).
Where rehabilitative alimony is awarded for the purpose of attaining a professional degree, and that is accomplished, and the recipient becomes employed in that field, the goal of rehabilitative alimony is met, even if due to poor financial management and the unforeseen expense of medications for mental health problems, the recipient has not reached self-support at the marital standard of living. Pettry v. Pettry, 768 So.2d 8 (Fla. 5th DCA 2000) (Rehabilitative alimony was awarded for the purpose of former wife earning a nursing degree. Instead, the former wife earned an advanced degree and secured a job as a teacher earning a salary similar to that which she would have earned with the nursing degree. Therefore, the former wife attained the goal of the rehabilitation, and had not proved entitlement to conversion to permanent alimony, despite the accumulation of post-dissolution debt and failing health).
Conversion and Extension of Rehabilitative Alimony
Rehabilitative alimony may be converted to permanent alimony. Canakaris v.Canakaris, 382 So.2d 1197 (Fla. 1980).
When considering a petition for conversion of rehabilitative alimony to permanent alimony, the court should not simply apply the substantial change of circumstances test, but should consider the original purpose of the award, whether it has been achieved, and if not, the reasonable likelihood of the recipient becoming self-supporting under the present circumstances, and whether recipient had made diligent efforts to become rehabilitated. O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982); Saez-Ortiz v. Saez-Ortiz, 560 So.2d 1375 (Fla. 5th DCA 1990); Tonnelier v. Tonnelier, 571 So.2d 522 (Fla. 1st DCA 1990).
Improper to grant conversion of rehabilitative alimony to permanent where the wife is making progress in rehabilitation and the rehabilitative period is only one-half over. Paulsen v. Paulsen, 603 So.2d 1317 (Fla. 1st DCA 1992).
Timeliness of Petition for Modification
A rehabilitative alimony award payable over a period of time may be modified at any time during the term of the rehabilitative period. Kelsey v. Kelsey, 636 So.2d 77 (Fla. 4th DCA 1994) (Application was timely filed after payor made last payment of rehabilitative alimony but, within 2 year term provided for alimony. It does not matter that rehabilitative alimony award is paid in full prior to filing petition for modification, as long as the rehabilitative period provided for in final judgment or agreement has not yet expired, the court has jurisdiction. Otherwise, payor would be able to control time period in which recipient would be able to seek modification).
Payor’s motion to dismiss was properly denied where there was no specific cutoff period for the rehabilitative alimony. Also, it was an abuse of discretion to fail to convert to permanent alimony given wife’s health problems. Hall v. Hall, 598 So.2d 297 (Fla. 1st DCA 1992).
VI. RETROACTIVE APPLICATION
Date of Filing
Modification should be retroactive to the date of filing the petition seeking the modification as long as there is finding that payee had need and payor had ability to pay at the date of filing. Morgan v. Morgan, 590 So.2d 562 (Fla. 1st DCA 1992); Kirkland v. Kirkland, 618 So.2d 295 (Fla. 1st DCA 1993.
Termination of alimony should be effective on date of filing when basis exists on date of filing. Natoli v. Natoli, 641 So.2d 477 (Fla. 3rd DCA 1994); Ray v. Ray, 707 So.2d 358 (Fla. 2nd DCA 1998).
When foreign order for alimony is established in Florida and sought to be modified, the modification can be retroactive to date of filing and not just date of domestication because under the full faith and credit clause of the constitution, the foreign judgment must be treated the same as a non-foreign judgment, which is modifiable retroactively to the date of filing. Barr v. Barr, 724 So.2d 1200 (Fla. 1st DCA 1998); Morin v. Morin, 466 So.2d 1255 (Fla. 2nd DCA 1985). But see Fabio v. Monell, 594 So.2d 782 (Fla. 5th DCA 1992), stating no modification until order is established and therefore only retroactive to that date).
Support obligations accruing under a court order in a domestic case become vested rights of the payee and vested obligations of the payor which are not subject to retroactive modification. Larger v. Diaz, 595 So.2d 1092 (Fla. 3rd DCA 1992); HRS v. Puglia, 600 So.2d 484 (Fla. 3rd DCA 1992); Barr v. Barr, 724 So.2d 1200 (Fla. 1st DCA 1998).
Past-due installments of alimony become vested property rights of recipient and those that are due and owing prior to the petition for modification are not subject to retroactive modification. Dykes v. Dykes, 712 So.2d 1189 (Fla. 1st DCA 1998).
VIII. MISCELLANEOUS CASES
Absent a marital settlement agreement to the contrary, the former wife’s current employability can be considered by the trial court in deciding to modify permanent alimony or convert to rehabilitative alimony, even if employability was considered at the time of the initial award. Rosen v. Rosen, 696 So.2d 697 (Fla. 1997).
Trial court entered modification order granting former wife increase in child support and alimony and requiring former husband to pay retroactive support of $15,000 within 120 days. It was unreasonable to require that former husband pay retroactive alimony and child support within 120 days where record did not contain evidence indicating ability to pay large amount within short period. Robinson v. Robinson, 668 So.2d 1074 (Fla. 2nd DCA 1996).
Court cannot enter temporary modification of alimony pending outcome of Supplemental Petition for Modification since the initial award is the law f the case until determined otherwise. Levinson v. Levinson, 895 So.2d (Fla. 4th DCA 2004).
3. HOW TO DEFEND IT
I. SEEKING AND DEFENDING AGAINST DIFFERENT TYPES OF ALIMONY
Temporary alimony is awarded pursuant to a separate statute, Section 61.071, Florida Statutes, but the same requirements of “need” and “ability to pay” apply. See, e.g., Vickers v. Vickers, 413 So.2d 788 (Fla. 3d DCA 1982). Although at one time temporary support was ordered merely to keep the payee from becoming a “charge on the state,” Grace v. Grace, 162 So.2d 314 (Fla. 1st DCA 1964), this view has been expressly rejected. See, Robbie v. Robbie, 581 So.2d 1006 (Fla. 4th DCA 1991). The proper standard on which an award of temporary alimony is based is the standard of living during the marriage. See, Vickers v. Vickers, supra.
In addition to the specific factors listed in Section 61.08(2), the question of permanent alimony boils down to one of need and ability to pay. See, e.g., Winney v. Winney, 979 So.2d 396 (Fla. 1st DCA 2008) (failure to make findings as to statutory factors was not harmless, as wife’s need and husband’s ability to pay was not shown); Costa v. Costa, 951 So.2d 924 (Fla. 4th DCA 2007). In most cases, permanent-periodic alimony is awarded where one party has sacrificed a career for the other’s career, the earnings of one party are much smaller than the other’s, and there is no showing that the lesser-earning party can increase his or her earnings to a more equal level. See, Costa v. Costa, supra.
Payor spouses sometimes have been successful in contesting alimony awards by showing that, after the payment was made, only a pittance remained on which to live for the month. See, e.g., Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980) (husband left with only $200 monthly); Squindo v. Osuna-Squindo, 943 So.2d 232 (Fla. 3d DCA 2006) (husband left with $608 monthly). A similar calculation is to show that the payee’s award is equal to a large percentage of the payor’s “take-home” pay. See, e.g., Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990) (alimony and child support took 79% of husband’s net pay); Sokol v. Sokol, 441 So.2d 682 (Fla. 2d DCA 1983) (awards equaled 71% of net pay); Kaylor v. Kaylor, 413 So.2d 870 (Fla. 2d DCA 1982) (in excess of 70%). Nicholson v. Nicholson, 372 So.2d 178 (Fla. 2d DCA 1979) (86%). Conversely, payees often have been successful when they were able to show a huge disparity in income with the payor. See, e.g., Sussman v. Sussman, 915 So.2d 281 (Fla. 4th DCA 2005) (husband earning four times more than wife); Salazar v. Salazar, 976 So.2d 1155 (Fla. 4th DCA 2008) (husband earning almost six times more than wife); Young v. Young, 677 So.2d 1301 (Fla. 5th DCA 1996) (husband earning eight times more than wife). However, such a disparity, standing alone, is insufficient. See, e.g., Mihaita v. Batista-Mihaita, 983 So.2d 36 (Fla. 4th DCA 2008).
The primary purpose of rehabilitative alimony is to establish the capacity for self-support of the recovering spouse, through the redevelopment of previous skills or the provision of training necessary to develop potential skills. Canakaris v. Canakaris, supra; Corchado v. Corchado, 648 So.2d 1261 (Fla. 4th DCA 1995); Kristensen v. Kristensen, 433 So.2d 598 (Fla. 5th DCA 1983).
It is well established in Florida that in order to be upheld as valid rehabilitative alimony, the receiving spouse must have a specific rehabilitation plan. See, e.g., Fullerton v. Fullerton, 709 So.2d 162, 164 (Fla. 5th DCA 1998); Allison v. Allison, 692 So.2d 1013 (Fla. 4th DCA 1997); Beasley v. Beasley, 717 So.2d 208, 209 (Fla. 5th DCA 1998); Anderson v. Anderson, 617 So.2d 1109, 1111 (Fla. 1st DCA 1993). A rehabilitation plan is necessary, in turn, because a spouse who makes a good-faith attempt to rehabilitate himself or herself, but does not meet the plan’s goals “within the initially fixed period may apply to the court for an extension or modification of the rehabilitative award.” Blumberg v. Blumberg, 561 So.2d 1187, 1188 (Fla. 1st DCA 1989) (emphasis supplied), citing: Pardee v. Pardee, 510 So.2d 660 (Fla. 2d DCA 1987); Veach v. Veach, 407 So.2d 308 (Fla. 4th DCA 1981). It is perfectly proper, in a given case, to award both rehabilitative and permanent-periodic alimony to the same recipient. See, e.g., Sharon v. Sharon, 862 So.2d 789, 790-91 (Fla. 2d DCA 2003) (upholding dual award); Busch v. Busch, 681 So.2d 805 (Fla. 1st DCA 1995) (evidence supported dual award, but remand necessary for trial court to properly distinguish one from other).
Lump-sum alimony may be awarded as an instance of support, for a vested property interest, or as a means of ensuring equitable distribution of the property acquired during the marriage. See, Canakaris v. Canakaris, supra. “Special circumstances” must justify a lump-sum award. Greene v. Greene, 895 So.2d 503, 512 (Fla. 5th DCA 2005). In a support context, one such special circumstance is the payor’s inability to make periodic payments instead. See, e.g., Lewis v. Lewis, 383 So.2d 1143 (Fla. 4th DCA 1980). A common type of lump-sum award is to award the payee the payor’s interest in jointly owned real property. See, id.; Russell v. Russell, 890 So.2d 1148 (Fla. 4th DCA 2004).
Bridge the Gap
This type of short-term award is typically shorter in duration than rehabilitative-alimony awards, and does not require a rehabilitative plan. See, Blase v. Blase, 704 So.2d 741 (Fla. 4th DCA 1998) (reversing seven-year “rehabilitative” alimony award); Robbie v. Robbie, 726 So.2d 817, 820 n. 2 (Fla. 4th DCA 1999) (approving bridge-the-gap of “a very short period of time, . . . just over a year,” “where the wife presented no rehabilitative plan”). The purpose is to ease the transition from married to single life, and the Fifth DCA has recently receded from its prior opposition to such awards, and joined its four sister courts in approving “bridge-the-gap” alimony. See, Price v. Price, 951 So.2d 55, 59-60 (Fla. 5th DCA 2007).
An award of nominal alimony, such as one dollar per year, may be awarded to permit the payee spouse to pursue a future increase if the payor’s full earning potential materializes. See, e.g., Blanchard v. Blanchard, 793 So.2d 989 (Fla. 2d DCA 2001), citing: Wing v. Wing, 429 So.2d 782 (Fla. 3d DCA 1983) and Moore v. Moore, 401 So.2d 841 (Fla. 5th DCA 1981). If the payee spouse would otherwise be entitled to alimony but is being supported in an unmarried relationship, nominal alimony may be awarded to protect the payee and allow modification should the new relationship end. See, Bridges v. Bridges, 842 So.2d 983 (Fla. 1st DCA 2003) (instead of terminating alimony award when payee was subsequently supported by new paramour, nominal alimony should have been awarded).
The most common scenario for an award of no alimony at all is in the short-term marriage, lasting six or seven years or less. In such situations the parties are often young, in good health, and typically the payee either worked during the marriage, or the marriage was of short enough duration that a brief drop out of the work force did not affect the payee’s employability. See, e.g., Roth v. Roth, 973 So.2d 580 (Fla. 2d DCA 2008) (six-year marriage); Bode v. Bode, 920 So.2d 841 (Fla. 4th DCA 2006) (two-year marriage, rehabilitative award reversed); Sutton v. Hart, 746 So.2d 1175 (Fla. 3d DCA 1999) (same); Kremer v. Kremer, 595 So.2d 214 (Fla. 2d DCA 1992) (six-year marriage, permanent award reversed); Spencer v. Spencer, 590 So.2d 553 (Fla. 1st DCA 1991) (four-year marriage, rehabilitative award reversed); Siegel v. Siegel, 564 So.2d 226 (Fla. 5th DCA 1990) (six-year marriage, permanent award reversed); Cornell v. Smith, 616 So.2d 629 (Fla. 4th DCA 1993) (seven-year marriage, permanent award reversed). However, since need must be shown, if the parties’ circumstances are roughly equalized by the divorce, or the payee can otherwise support himself or herself thereafter in the marital lifestyle, it may still be proper to award no alimony in marriages longer than short-term. See, e.g., Wismar v. Wismar, 522 So.2d 552 (Fla. 5th DCA 1988) (reversing permanent award in eight-year marriage despite two children); Young v. Young, 449 So.2d 980 (Fla. 1st DCA 1984) (reversing permanent award despite 21-year marriage where claimant wife made as much as husband). However, in “gray area” and especially long-term marriages where permanent-periodic alimony is proper, it is more common for an award of some rehabilitative alimony to be made, due to the payee often being out of the work force for a longer time. See, e.g., Contogeorgos v. Contogeorgos, 482 So.2d 590 (Fla. 4th DCA 1986) (nine-year marriage); Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988) (same).