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01/10/2014
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Just how “Permanent” is your Permanent Alimony?

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Just how “Permanent” is your Permanent Alimony?

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Permanent alimony is often referred to as indefinite payments. As such, for the recipient, an award for such support would seemingly appear to provide them with eternal financial stability. While for the payer, they may feel that such award has imposed a lifelong obligation to an individual that they have parted ways with. However, despite its name, permanent alimony is not always as ‘permanent’ as one may think, and can, in some cases can be reduced, and even altogether terminated.

Just like other forms of spousal support, permanent alimony can be modified or terminated based upon a substantial change in circumstances. This change applies to the circumstances of both the receiving spouse and the paying spouse. As outlined in Pimm v. Pimm, 601 So. 2d 534, 536 (Fla. 1992), and numerous other cases citing these so-called ‘Pimm Factors’, a modification can occur where:

(1) there has been a substantial change in circumstances;

(2) the change was not contemplated at the time of the final judgment of dissolution; and

(3) the change is sufficient, material, permanent, and involuntary.

In addition to other changed circumstances, either party’s death, or the receiving spouse’s remarriage can allow for termination of support. Evidence of a receiving spouse being in a supportive relationship can also provide grounds for reducing or terminating a payer’s obligation to make permanent periodic payments even if the spouse receiving alimony is not actually married.

The terms of a marital settlement agreement (MSA) can also allow for, prevent, or limit a party from obtaining a modification of support. Depending on how it was drafted, an MSA can work for or against an obligee or obligor of an order for support. An MSA is contractual agreement, and therefore the intent of the parties must be considered, while also keeping in mind the court’s discretion in evaluating the terms of an MSA in the family law setting for purposes of modification. As stated by the Pimm court, in discussing an MSA that included a provision for termination of support upon remarriage, but failed to address what might occur upon the retirement of the payer:

“we find that silence in that regard should not preclude consideration of a reasonable retirement as part of the total circumstances in determining if sufficient changed circumstances exist to warrant a modification of alimony.”

While the Pimm case addresses ‘substantial change’ given an MSA that fails to address retirement, this same concept can be applied to other scenarios in which the parties are in dispute over the impact that that their MSA may have on the right to modify support payments. The terms of an MSA may be vague, ambiguous, fail to account for particular issues, and/or be poorly drafted in general. In short, Your MSA may not be as airtight as you thought, particularly in cases where a party failed to obtain representation during the divorce, or obtained inadequate representation.

It is important to note the distinction between alimony arising out of a voluntary agreement (i.e. MSA), as opposed to support granted through the court’s own decision making process. As stated in the Pimm case,

“ […]the court should consider whether the provision for alimony was contained in an agreement between the parties or solely in a judgment of the court.”

This distinction is critical when it comes to modifying support, because the burden of proof varies for each. In Pimm, citing Tinsley v. Tinsley, 502 So.2d 997, 998 (Fla. 2d DCA 1987), the court noted that,

“[w]here the alimony sought to be modified was . . . set by the court upon an agreement of the parties, the party who seeks a change carries a heavier than usual burden of proof.”

If you are receiving or obligated to pay permanent periodic alimony and wish to seek an order to alter payments, it is vital to know your legal rights and options to modify or terminate support prior to initiating proceedings. Equally important, though is knowing whether there may be a possibility for modification or termination of support to occur in the future, given the terms of your MSA and/or the onset of a particular event, such as retirement or change in employment. Keep in mind, that altering a valid order for support requires court intervention, and payments should continue to be made unless and until alimony is changed.

The Law Office of Alba & Yochim is a client-focused result-driven firm with decades of experience representing clients in a wide array of alimony cases. Whether you are a requesting or defending party to a support modification proceeding, or simply have a question or concern regarding your existing order for permanent alimony, our Gainesville Alimony Attorneys want to help you.

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