Florida Family Lawyer Blog

The economy is bad, the employment rate is plunging, and life just doesn’t seem to be getting any easier. An important issue that many recently unemployed white-collar workers may be facing is whether their current alimony payments to their ex-spouse should remain at the same rate. It’s not hard to imagine a scenario that when Husband and Wife were going through a divorce 3 years ago, Husband worked a management level position at a Finance Corporation in Boca Raton, was getting paid a high salary, and his wife was a stay-at-home mother living at the couple’s home in Fort Lauderdale. When Husband and Wife got divorced, Husband was required to pay alimony to Wife, the terms of which were set in accordance with Husband’s high-paying job at the time. But, now it’s 2009, Husband has lost his job, and because of the downturn in the economy, Husband has no employment prospects in the near future. Husband’s savings are declining at a rapid pace, and he can no longer pay the required alimony payments dictated by a three-year-old divorce settlement agreement.

At the time of divorce, the parties’ needs and abilities to pay are settled by a final judgment awarding alimony. However, a final judgment requiring one party to pay the other alimony may be modified or even temporarily suspended. A party may petition the court to modify alimony, but the moving party must show: (1) a substantial change in circumstances has occurred; (2) that the change in circumstances was not contemplated at the time the divorce settlement was reached; and (3) that the change in circumstances is sufficient, material, involuntary, and permanent in nature. In the fact situation described above, the first two requirements are easily met. Husband has lost his job and cannot find a new job, severely reducing his income – no doubt a substantial change. Furthermore, this change could not have been contemplated 3 years ago when Husband was gainfully employed. The real issue in this situation is whether the change in Husband’s circumstances is permanent enough to warrant a reduction, or at least a temporary reduction or suspension, in his alimony payments to his Wife.

Florida law dictates that a showing of substantial change in circumstances is sufficiently “permanent” when the conditions exist for one year or more. However, an important caveat to this general rule is that not all circumstances must adhere to this standard. In fact, there may be fact situations where the permanence of a situation can be proved right away. Could this just be one of those situations that warrant such treatment? A recent article made an interesting argument that with the downsize of the financial sector, it should be easier for unemployed and underemployed professionals to minimize alimony by arguing “their plunge in fortunes isn’t short-lived” and is most likely permanent in nature. That argument aside, in Florida, a temporary modification in alimony is appropriate where the court determines that Husband has suffered a reduction in income without deliberately seeking to avoid paying alimony and is acting in good faith to return his income to its previous level. In fact, when such a situation arises, the Husband’s alimony obligation should be reduced to be more commensurate with his current ability to pay. Also, a court may even suspend payments temporarily if such inability to pay arises. It’s important that in these uncertain times to take advantage of what Florida courts allow.

If you are currently paying alimony payments to your ex-spouse and have lost your job and do not see any hopeful employment prospects in the future, the best advice would be to consult a lawyer concerning your ability to either temporarily or permanently reduce your alimony payments.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Alimony , Divorce

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In the state of Florida, including the city of Palm Beach Gardens, an alimony agreement reached as part of a divorce settlement acts as a binding contract on the parties involved. An example of such an agreement would be where one spouse agrees to pay the other spouse $2000 a month in alimony for a certain period of time or until that spouse remarries. When parties enter into such an agreement in connection with a divorce, and the circumstances or the financial ability of either party substantially changes, either party may apply to the circuit court for an order to increase or decrease the alimony amount. However, it is well-established that the statutory right to petition for modification of an alimony award may be intentionally or impliedly waived. This waiver to modify alimony terms may be expressed within the agreement or through interpretation of the agreement as a whole.

Last month, the Palm Beach Post included an editorial “Divorced from reality,” discussing a 4th District Court of Appeal case, Craissati v. Craissati, that applied modification and waiver of alimony law to reach an absurd result. In 2001, a husband and wife divorced with a final judgment for dissolution of marriage, which incorporated the parties’ marital settlement agreement, including a provision for alimony. Pursuant to the terms of that agreement, the former husband agreed to provide 8 years of alimony in the amount of $2000 a month to his former wife. However, the agreement contained a clause providing for termination of alimony. That clause explicitly stated that any “future alimony payments owed to the Wife ends upon the death of either party, remarriage, or cohabitation with another person other than the parties’ child. ‘Cohabitation’ shall be defined as the Wife living with another person (not including the parties’ child) for a period of 3 (three) consecutive months or more.” The agreement then contained a waiver clause, stating that the terms and nature of alimony could not be modified by either party for any other reason except for the husband’s proven decline in financial condition.

In 2005, the former wife was sentenced to 9 years in prison in connection with criminal convictions for driving under the influence, leaving the scene of an accident and causing serious bodily injury. Thereafter, the former husband filed a petition for modification of alimony. Because the husband could only modify the terms of the agreement under the conditions previously mentioned, his lawyers got creative – and the 4th DCA bought their argument. To get around his agreement’s modification waiver, the former husband argued that the incarcerated wife was cohabitating with her cell mate, and during an evidentiary hearing, the wife stipulated that her cell lifestyle met the alimony agreement’s definition of “cohabitation.” The court agreed with the husband’s argument, and the wife’s alimony was cut off! To read the full case, click here.

What should we take away from this absurd result? Perhaps this case stresses the importance of proper drafting of settlement agreements. If you are going through a divorce, consult an attorney for advice about your settlement agreement.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Alimony

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When Florida residents think about alimony, the most common type that comes to mind is what is termed “permanent alimony.” Permanent alimony, however, is fundamentally different and does not serve the same purpose as “rehabilitative alimony,” which allows a spouse to regain financial independence after divorce. In fact, the court may even grant a combination of both types

Consider this: ten years ago, you graduated from University of Miami, top of your class, and you were well on your way to earning your degree to become a nurse anesthetist. But, before you could finish, you got married and made the decision to put your education and career path on hold to raise a family. You wouldn’t change that decision for the world, but now, it’s ten years later, your marriage has ended, and you have no way to support yourself, having relied on your spouse for generating all of the family’s income. Ignoring your “limitations,” you take control by going back to finish school and enter the work force. In Florida, the court may grant rehabilitative alimony for a limited period of time to assist you in regaining yours status as a self-supporter.

Rehabilitative alimony forces one spouse to pay for the other to obtain a skill, education, or rehabilitation so that he or she can eventually support his or her self – an ability they lost or never had before or during the marriage. If you seek rehabilitative alimony, it is important that during the dissolution proceeding you present detailed evidence demonstrating the cost of completing your education, your prospects of future employment, and the amount of time you will need to obtain the income you need. This “plan,” must be credible and adequate, so it is important to make it as accurate as possible.

In Florida, there is an important limitation on rehabilitative alimony – it does not act as a substitute for unemployment compensation or retirement benefits, but lasts only until the receiving spouse can be sufficiently trained for employment and no longer relies on the other spouse’s funds for support. Take the opening hypothetical, for example. You have presented to the court, during your divorce proceeding, a plan that includes going back to college for two years to earn your nursing degree including an additional year to find the right job that will be well-compensated. Taken together, the court may award rehabilitative alimony for up to 3 years from your ex-spouse.

To discuss the need for rehabilitative alimony during your dissolution proceeding, or to create an adequate rehabilitative alimony plan to present to the court, please consult an attorney.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Alimony , Divorce

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