When Should I file for a Modification of Alimony?
If you have recently lost your job or had a reduction in income, you may be able to request a modification of your alimony obligation. Alternatively, if you have reached retirement age or are looking to slow down or retire from your current positions, you may want to consider a modification of alimony.
When filing for a Modification of alimony, you must demonstrate to the court a (1) substantial change in circumstances, (2) that was not contemplated at the time of the entry of the agreement or Final Judgment, (3) that is sufficient, material, involuntary, and permanent in nature has occurred. However, voluntary retirement is also a basis for a modification when the voluntary retirement is reasonable based on 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. Tinsley v. Tinsley, 502 So. 2d 997 (Fla. 2d DCA 1987).
If you have experienced an unexpected reduction of income, it is imperative that you file for a Modification of Alimony as soon as possible. If you wait to file, the Judge only has the ability to retroactively adjust your alimony back to the date of filing. For example, if you were laid off from your position in January and you wait until April to file for a modification, the Judge can only reduce your alimony obligation starting from April. You would still be responsible for your alimony payments from January through April. Additionally, the filing of a modification action prevents your former spouse from asking the court to hold you in contempt of court. When a Petition for Modification is filed, the party who filed for the modification is entitled to have the Petition heard prior to or simultaneously with a Motion for Contempt. See Arias v. Arias, 133 So. 3d 533, 535 (Fla. 2d DCA 2013). If you wait to file your modification and stop making your alimony payments, your former spouse may be able to have you held in contempt of court because you failed to modify the obligation.
If you are seeking to modify your alimony obligation because you are looking to slow down or retire from your current position, it is important that you begin to plan your modification prior to reducing your income. The Courts recognizes that you have a right to retire and reduce your alimony obligation in accordance with your income reduction, as long as it does not leave your former spouse stuck in peril of poverty. See Olsen v. Olsen, 964 So. 2d 798 (Fla. 5th DCA 2007). Even if you are receiving retirement benefits, you are still entitled to file for a Modification of Alimony. See Acker v. Acker, 904 So.2d 384 (Fla. 2005). When planning to retire or partially retire, you should have your modification ready to be filed at the same time that your income is reduced. This will allow you to receive retroactive credit back to the date of filing if the Court finds that a modification of alimony is warranted.
Whether you have had a reduction in income or are thinking about retiring, it is important to speak with an attorney about a modification of alimony. At the DeWitt Law Firm, we have the experience and knowledge to help you make an informed decision about whether to file for a modification of alimony.