In Naples, Florida, Is Permanent Alimony Really Permanent?

permanent alimony in Collier County

In a Florida divorce, permanent alimony is a fixed, recurring payment that lasts indefinitely. Permanent alimony can only be changed via 1) death of either party, 2) remarriage of the alimony-receiver or 3) after a court decision that alimony should be modified based on a substantial change of circumstances.  Nethery v. Nethery, 951 So. 2d 976 (Fla. 4th DCA 2007)

Permanent alimony is not even considered unless it passes the needs and capacity test.   After this test is met, the party asking for permanent alimony must show a “permanent inability…to become self-sustaining.” Evans v. Evans, 128 So. 3d 972 (Fla. 1st DCA 2013).

Permanent alimony then requires that the marriage qualify as a “long-term marriage.” A “long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.” Fla. Stat. Sec 61.08(4) 

You’ll see this is a high bar. Permanent alimony requires: 1) That the receiver needs it, 2) the payor can pay it, 3) the receiver cannot ever meet his or her needs and 4) the marriage was at least 17 years long.

Nothing can ever change regarding the length of the marriage but the other three factors can easily change and qualify as a substantial change of circumstances per the Florida statue. “An award may be modified or terminated based upon a substantial change in circumstances” Fla. Stat. Sec. 61.08(8)

If the alimony-receiver gets a new job, a live-in boyfriend or girlfriend, even wins the lottery, that is a substantial change of circumstance as the alimony-receiver’s needs are being further met.  It’s rarer but still viable that an alimony receiver’s needs change after a move to perhaps a more affordable community or out of the expensive marital home when the kids move out.  The most common change in needs of the alimony-receiver after an order of permanent alimony is receipt of social security or a pension.

More common for the purposes of a substantial change of circumstances is a change in the capacity to pay of the alimony-payor. Alimony-payors lose their jobs, suffer financial misfortune, etc.  The question in these cases is usually, “Did the alimony-payor” do this on purpose.  If the court finds that the alimony-payor’s alleged inability to pay the alimony is due to his or her own actions, then the court may simply deny the modification or impute an income the court believes the alimony payor should have made if not for his or her bad actions.

More specifically, the courts ask if the change was contemplated at the time of final judgment of dissolution. Withers v. Withers, 390 So.2d 453 (Fla. 2d DCA 1980).  If the parties reasonably assumed it the change could happen (like a 10% reduction in sales for a salesman) then that change does not qualify as a substantial change in circumstances.

Finally the substantial change must be material, permanent in nature. Servies v. Servies, 524 So.2d 678 (Fla. 1st DCA 1988)

The one big and common exception to the voluntary change of circumstances rule I laid out above is that the courts do allow you to retire voluntarily…but you must be at least 65 years old.  Pimm v. Pimm, 601 So. 2d 534 – Fla: Supreme Court 1992

Finally, look to whether the alimony-receiver can ever meet their needs or not.  Alimony receivers are getting and amount that just meets their needs.  It is not uncommon for an alimony-receiver to get a job that allows them to supplement the alimony only to find out that the job reduces the alimony.

In my experience, look to the judge.  There is never a young judge.  Judges are always in their fifties and up.  Judges have retirement on their minds and are sympathetic to the retiree.  Craft your argument for the substantial change in circumstances as through it could happen to the judge.

On the other hand, judges are government employees with guaranteed salaries.  They often worked in government before becoming a judge.  Judges were usually lawyers who liked law for its own sake and not “as a business” (or they would be lawyers with websites like this one).  Judges often do not sympathize with the ups and downs of the business cycle and do not consider those changes to be substantial changes in circumstances.

So, when hiring a lawyer, consider how your lawyer will present your change of circumstance to the judge.  Every argument has an audience.  Call my Naples, Florida family law firm to learn how my argument would sound to your audience.

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