January 4, 2014 by Nancy Pelosi
MYTH: If “permanent” alimony is eliminated, current alimony judgments could be changed simply based upon the modification to the alimony statute.
TRUTH: Permanent alimony is always modifiable unless the parties have specifically agreed otherwise. However, Article I of the United States Constitution and Article I, Section 10, of the Florida Constitution prohibit the application of ex post facto laws. Also, the ability of current permanent alimony payors to go back to change their alimony obligations based solely on changes to the statute would increase litigation and endanger current alimony recipients who have made financial decisions based on the understanding that their award, while modifiable, was for an award of permanent alimony (understanding that remarriage, cohabitation, retirement, or other such substantial change in circumstance could always result in a change in the alimony). Again, allowing such modification could result in the impoverishment of the recipient spouse and result in added expenses for taxpayers.
MYTH: Permanent alimony payors are prohibited from retiring.
TRUTH: Per Florida case law, retirement at the presumptive retirement age has historically constituted a basis for modification of a permanent alimony award. An automatic termination of alimony upon retirement and without judicial oversight could leave the recipient impoverished and force him or her to seek financial assistance from the state. Also, many retire from one profession and commence a new job, so their income may not have changed despite the “initial” retirement.
MYTH: Alimony payors would benefit from a formula-based alimony award.
TRUTH: Florida statutes require the courts to base the amount of an alimony award on, among nine other factors, the needs and necessities of life as established during the parties’ marriage. Numerous cases prohibit alimony awards which exceed a payor’s ability to pay. A strict formula would eliminate the discretion the courts need to properly address the relevant factors. Few states follow formulas; the vast majority require the courts to consider factors on a case by case basis.