Alimony is money from people who work. No one expects people to work forever…not even the Florida family court system. Sooner or later the alimony payor will retire petition the court to terminate or reduce the alimony payments based on that retirement. Florida courts will balance the facts against the law to determine if retirement should, in fact, allow for a modification of alimony payments.
What Is Alimony In A Florida Divorce?
Alimony is a way to further ensure an equitable division of finances between two spouses who have unequal incomes. When one spouse has relied on the other spouse for regular financial support, the Florida legislature states the supporting spouse should continue to support their ex-spouse in one of the following ways: temporary, bridge-the-gap, rehabilitative, or durational alimony. These may be ordered in periodic or lump sum payments. Fla. Stat. Ann. §61.08(1)(a) (West 2023).
Ordering durational alimony makes sense if the supporting spouse is going to be working for the entirety of that defined duration of time. But, if the supporting spouse is likely to retire during that defined duration, certain considerations must be taken.
This article reflects Florida’s 2023 alimony reform (Senate Bill 1416), which eliminated permanent alimony and created new rules for retirement-based modification.
How Does Alimony Normally Get Calculated in a Florida Divorce?
Alimony is typically awarded depending on the obligee’s needs and the obligor’s ability to pay.
“[T]he court shall first make a specific, factual determination as to whether the party seeking support, maintenance, or alimony has an actual need for it and whether the other party has the ability to pay…” Fla. Stat. Ann. §61.08(2)(a) (West 2023).
Alimony is considered based on several factors, including “the duration of the marriage, the standard of living established during the marriage and the anticipated needs and necessities of life for each party, the age, physical, mental, and emotional condition of each party [including physical and mental disabilities and their impact, whether temporary or permanent], the resources and income of each party, the earning capacities, educational levels, vocational skills, and employability of the parties, the contribution of each party to the marriage, the responsibilities each party will have with regard to any minor children, [and] any other factor necessary for equity and justice between the parties…” Fla. Stat. Ann. §61.08(3) (West 2023).
Durational alimony is calculated by the obligee’s “reasonable need, or an amount not to exceed 35 percent of the difference between the parties’ net incomes, whichever amount is less. Fla. Stat. Ann. §61.08(8)(c) (West 2023).
The caveat here is that “[t]he award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.” Fla. Stat. Ann. §61.08(9) (West 2023).
Durational alimony lasts for a specific amount of time based on how long you were married. A short term-term marriage lasts between 3 and 10 years; a moderate-term marriage lasts between 10 and 20 years; a long-term marriage lasts 20 years or longer. Fla. Stat. Ann. §61.08(5) (West 2023). Durational alimony “terminates upon the death of either party or upon the remarriage of the obligee.” Fla. Stat. Ann. §61.08(8)(a) (West 2023).
In Florida, “durational alimony may not exceed 50 percent of the length of a short-term marriage, 60 percent of the length of a moderate-term marriage, or 75 percent of the length of long-term marriage.” Fla. Stat. Ann. §61.08(2)(b) (West 2023).
What If You Are Going To Retire Soon And You Are Getting A Florida Divorce?
Does alimony end when you retire in Florida? If you are close to retirement and considering divorce, you are likely to have been married to your spouse for a long time. Thus, the duration of your alimony can be expected to be 75 percent of the length of your marriage. You’re not likely to work that long. You might not even live that long.
In Florida, it is widely accepted that voluntary retirement is reasonable upon reaching the age of 65 years. Pimm v. Pimm, 601 So.2d 534, 537 (Fla. 1992).
If your Florida divorce is not yet finalized but your retirement is on the horizon, then you should alert your spouse, the opposing counsel, and your divorce judge to the factors they must consider when setting an alimony amount and duration of the alimony payments.
Before ordering durational alimony, “the court shall first make a specific, factual determination as to…whether the other party has the ability to pay support, maintenance, or alimony.” Fla. Stat. Ann. §61.08(2)(a) (West 2023).
Several of the factors the court must consider before awarding alimony in a Florida divorce are directly impacted by a pending retirement.
“The standard of living established during the marriage and the anticipated needs and necessities of life” Fla. Stat. Ann. §61.08(3)(b) (West 2023).
“The age, physical, mental, and emotional condition of each party” Fla. Stat. Ann. §61.08(3)(c) (West 2023).
“The resources of income from each party.” Fla. Stat. Ann. §61.08(3)(d) (West 2023).
“The earning capacities, educational levels, vocational skills, and employability of the parties” Fla. Stat. Ann. §61.08(3)(e) (West 2023).
“Any other factor necessary for equity and justice between the parties…including a reasonable retirement.” Fla. Stat. Ann. §61.08(3)(h) (West 2023).
These factors can substantially impact the amount of alimony awarded in a pending divorce. Florida courts have repeatedly stated that they must base their decisions on net income, not future income.
“The parties’ respective need for and ability to pay alimony must be based on the parties’ net incomes.” Gayer v. Nicita, 386 So.3d 533, 538 (Fla. 6th DCA 2023).
“Alimony should be based on current, existing circumstances, and not on possibilities.” Rhoden v. Rhoden, 259 So.3d 864, 868 (Fla. 1st DCA 2020).
Retirement can be listed as a contemplated substantial change in circumstances which will allow for a modification of alimony at the time of retirement.
“The court may reduce or terminate an award of support, maintenance, or alimony upon specific, written findings of fact that the obligor has reached normal retirement age…and has taken demonstrative and measurable efforts or actions to retire or has actually retired.” Fla. Stat. Ann. §61.14(3)(c)(1)(West 2023).
“Appellate courts look to see if there was evidence that the parties’ accounted for, contemplated, considered, and factored in the former husband’s retirement when they previously agreed to an alimony amount.” Dwight v. Dwight, 395 So.3d 698, 702 (Fla. 5th DCA 2024).
“A spouse’s voluntary retirement at or past what is considered normal retirement age, if otherwise reasonable, can result in a change in circumstances that, together with other factors, would justify modification of alimony.”Dwight v. Dwight, 395 So.3d 698, 702 (Fla. 5th DCA 2024).
What If I Am Retiring After My Florida Divorce Is Final?
Can I reduce my Florida alimony by retiring? Alimony can be modified after a Florida divorce if there is a showing of a substantial change in circumstance, unless the parties agreed that alimony will be non-modifiable.
“The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances…The length of an award of durational alimony may not be modified except under exceptional circumstances.” Fla. Stat. Ann. §61.08(8)(a) (West 2023).
“Retirement is a changed circumstance warranting reconsideration of alimony.” Holder v. Lopez, 274 So.3d 518, 520 (Fla. 1st DCA 2019).
“Silence as to retirement within an original judgment or agreement 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.” Bauchman v. Bauchman, 253 So.3d 1143, 1147 (Fla. 4th DCA 2018).
How to stop paying alimony when you retire in Florida? With regards to voluntary retirement specifically, the court must consider specific factors to modify alimony, even when the retiree has reached the normal age of retirement.
“The age and health of the obligor.” Fla. Stat. Ann. §61.14(2)(a) (West 2023).
“The nature and type of work performed by the obligor.” Fla. Stat. Ann. §61.14(2)(b) (West 2023).
“The customary age of retirement in the obligor’s profession.” Fla. Stat. Ann. §61.14(2)(c) (West 2023).
“The obligor’s motivation for retirement and likelihood of returning to work.” Fla. Stat. Ann. §61.14(2)(d) (West 2023).
“The needs of the obligee and the ability of the obligee to contribute toward his or her own basic needs.” Fla. Stat. Ann. §61.14(2)(e) (West 2023).
“The economic impact that a termination or reduction of alimony would have on the obligee.” Fla. Stat. Ann. §61.14(2)(f) (West 2023).
“All assets of the obligee and the obligor accumulated or acquired prior to the marriage, during the marriage, or following the entry of the final judgment…” Fla. Stat. Ann. §61.14(2)(g) (West 2023).
“The income of the obligee and the obligor earned during the marriage or following the entry of the final judgment.” Fla. Stat. Ann. §61.14(2)(h) (West 2023).
“The social security benefits, retirement plan benefits, or pension benefits payable to the obligor and the obligee following the final judgment…” Fla. Stat. Ann. §61.14(2)(i) (West 2023).
“The obligor’s compliance, in whole or in part, with the existing alimony obligation.” Fla. Stat. Ann. §61.14(2)(j) (West 2023).
These factors serve to decide whether the retiree’s decision was reasonable. Modifications cannot be made if the obligor retired to avoid paying his or her alimony obligation. Anderson v. Durham, 162 So.3d 65, 66 (Fla. 1st DCA 2014).
So, complaints of the current work and imaginings of retired bliss are sufficient to establish a reasonable intent or decision to retire. Of course, it is probably better to elaborate on why retirement is necessary due to age and health.
“Retirement, if reasonable, can support the finding of a substantial change in circumstances.” Tanner v. Tanner, 330 So.3d 567, 568 (Fla. 2nd DCA 2021).
“In determining whether a voluntary retirement is reasonable, the court must consider the payor’s age, health, 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.” Holder v. Lopez, 274 So.3d 518, 521 (Fla. 1st DCA 2019).
Not all retirements are really retirements. Some retirements don’t even warrant a reduction in maintenance.
“Even at the age of sixty-five or later, a payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty. 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.” Pimm v. Pimm, 601 So.2d 534, 537 (Fla. 1992).
“Although the trial court found that the husband’s retirement at age fifty-two was normal for law enforcement officers, that in and of itself does not justify a reduction of child support.” Moniz v. Moniz, 979 So.2d 1140, 1142 (Fla. 4th DCA 2008).
How To Argue Against A Reduction In Alimony Because Of Your Ex-Spouse’s Retirement
Retirement and alimony modification may be inevitable to the retiring spouse, but the alimony receiving spouse still needs the alimony that was ordered.
The best argument that alimony should continue after retirement is a demonstration of continued need.
“[A] payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty.” Pimm v. Pimm, 601 So.2d 534, 537 (Fla. 1992).
The next best argument to continue alimony after retirement is that the spouse’s retirement does not constitute a substantial change in circumstances and that they can afford to continue paying alimony.
In the case of Vriesenga v. Vriesenga, 931 So.2d 213 (Fla. 1st DCA 2006), the spouse was able to show both her demonstration of need and her ex-spouse’s ability to continue payments. The obligee was permanently physically disabled and in financial need, while the obligor had retired from the Air Force and sought modification of his alimony.
After demonstrating her considerable financial needs, “[s]he testified that she would not be able to survive without the alimony she had been receiving.” Vriesenga v. Vriesenga, 931 So.2d 213, 215 (Fla. 1st DCA 2006).
“Mr. Vriesenga has not retired in the sense of leaving the workforce permanently; he is leaving one occupation only to prepare for another Vriesenga v. Vriesenga, 931 So.2d 213, 215 (Fla. 1st DCA 2006).
“[T]he former husband had a burden to show a material, permanent change.” Vriesenga v. Vriesenga, 931 So.2d 213, 215 (Fla. 1st DCA 2006).
The court ruled that modifying the former husband’s alimony obligations would place the obligee in a “desperate financial situation,” and that the former husband’s voluntary retirement would still allow him to continue working and afford his alimony obligations. Vriesenga v. Vriesenga, 931 So.2d 213, 215 (Fla. 1st DCA 2006). So, the former wife’s argument against modification here was successful on both claims.
Retirement Assets And Alimony After A Florida Divorce
Most retired people are retiring because they have enough money to live off of without working. So, in almost every motion to modify alimony during retirement, the court will consider the assets of the parties.
“All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.” Fla. Stat. Ann. §61.076(1) (West 2023).
Retirement funds should be generating income and alimony is calculated based on income in Florida.
In modification, the courts consider “all assets of the obligee and obligor accumulated or acquired prior to the marriage, during the marriage, or following the entry of the final judgment…the social security benefits, retirement plan benefits, or pension benefits payable to the obligor and the obligee following the final judgment of dissolution.” Fla. Stat. Ann. §61.14(2)(g,i) (West 2023).
In Florida, income from assets already divided cannot be used to calculate a modification of alimony. The theory is that money in a retirement account has already been earned once, so withdrawing that money, while it creates a taxable event, is not truly current income.
Courts “[include] the value of retirement accounts at the time of the final hearing as part of the equitable distribution scheme.” Hedden v. Hedden, 240 So.3d 148, 152 (Fla. 5th DCA 2018).
“It is well established that discretionary withdrawals from a retirement account cannot be treated as income for purposes of a party’s ability to pay alimony…treating discretionary IRA withdrawals as income for purposes of calculating alimony forces the owner to deplete the account at a faster rate and deprives the owner of the full use of an asset which, presumably, was subject to equitable distribution at the time of the divorce.” Rodolph v. Rodolph, 244 So.3d 451, 457 (Fla. 4th DCA 2022).
Further, if “the agreed distribution of assets at the time of dissolution [was] considered by the parties and the court to be equitable”, a party cannot ask for income proceeds from that asset for the purpose of alimony. Varrieur v. Varrieur, 775 So.2d 361, 363 (Fla. 3rd DCA 2000).
“[T]he trial court included the value of the retirement accounts at the time of the final hearing as part of the equitable distribution scheme and gave each party approximately fifty percent. Post-dissolution, Former Wife is not entitled to any contributions to Former Husband’s retirement plans.” Hedden v. Hedden, 240 So.3d 148, 152 (Fla. 5th DCA 2018).
If a party has been awarded significant assets in a Florida divorce, they are not required to sell those assets and live off those assets in lieu of alimony.
“A court should not require a [former] spouse in need of alimony to deplete or invade capital assets to maintain his or her standard of living.” Inman v. Inman, 345 So.3d 320, 323 (Fla. 4th DCA 2022); see also Van Maerssen v. Gerdts, 295 So.3d 819, 826 (Fla. 4th DCA 2020).
| Topic | Details |
| Court Consideration | Florida courts consider the net income and assets, including retirement accounts and pensions, awarded to each party in the dissolution judgment. Fla. Stat. Ann. §61.076(1) (West 2023). |
| Sufficient Assets and Demonstration of Need | If the payor spouse has enough assets to meet alimony obligations post-retirement and the payee spouse shows continued need, a reduction in income does not always justify reducing or terminating alimony. Fla. Stat. Ann. §61.14(2) (West 2023).); Pimm v. Pimm, 601 So.2d 534, 537 (Fla. 1992).) |
| Income Calculation | Income from assets already divided cannot be used to calculate modification. Withdrawals from retirement accounts are not considered present income. Hedden v. Hedden, 240 So.3d 148, 152 (Fla. 5th DCA 2018); Rodolph v. Rodolph, 244 So.3d 451, 457 (Fla. 4th DCA 2022) |
| Waiver of Interest | If the agreed distribution of assets was equitable at the time of dissolution, a party cannot ask for income generated from assets they do not have. Varrieur v. Varrieur, 775 So.2d 361, 363 (Fla. 3rd DCA 2000); Hedden v. Hedden, 240 So.3d 148, 152 (Fla. 5th DCA 2018). |
| Selling Assets | A party is not required to sell significant assets to support themselves if the other party can meet both parties’ needs. Inman v. Inman, 345 So.3d 320, 323 (Fla. 4th DCA 2022). |
Social Security and Alimony In A Florida Divorce
Sometimes an ex-spouse can get more money from the government than they could get from an alimony payment. This may be a basis for modification of alimony. If Social Security contributes to a lack of need for alimony, a modification may be made.
“The trial court erred in finding that Former Wife demonstrated need. The evidence was undisputed that she received Social Security and Medicare disability benefits…” Holder v. Lopez, 274 So.3d 518, 520 (Fla. 1st DCA 2019).
If you are retiring and want to modify your alimony payment or if your former spouse is retiring and you’re concerned your alimony will be reduced or terminated, contact my Naples, Florida family law firm to speak with an experienced Florida divorce lawyer.
