Effect of Florida’s New Alimony Law on Existing Permanent Alimony Awards

By: Kyle Morgan and Yueh-Mei Kim Nutter

          Sweeping changes to Florida’s alimony statute went into effect as of July 1, 2023. Most notably, permanent alimony has been eliminated. This change to the law, however, only applies to initial petitions for dissolution of marriage filed or pending as of July 1, 2023. As such, what does Florida’s new alimony statute mean for existing permanent alimony agreements?

            Ex-spouses receiving or paying permanent alimony, whose divorces were finalized prior to the cut-off time, are still receiving or paying permanent alimony. The new law does not change permanent alimony that has already been awarded. Except when a marital settlement agreement specifically says an award of alimony is “non-modifiable”, permanent alimony was always subject to modification or termination when the circumstances or financial ability of either party substantially changes, including changes due to a receiving spouse’s supportive relationship or a paying spouse’s retirement.

            The new alimony law expands how a court determines the existence of a supportive relationship and codifies a Florida Supreme Court’s decision that judges use as a guidepost when making decisions about the impact of retirement on alimony obligations.

Retirement

            Prior to the enactment of this new law, the impact of retirement on alimony obligations was not specifically addressed in the statute. Rather, the Supreme Court of Florida has addressed the issue in Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992). The Pimm Court held that if a final judgment does not address the impact of retirement on an alimony award, the court may consider whether the retirement constitutes a substantial change in circumstances which warrants a modification or termination of alimony. As such, retirement may be a factor to be considered at the court’s discretion on a case-by-case basis.

          Under the new alimony law, the court may reduce or terminate an award of permanent alimony if the payor spouse has reached normal retirement age as defined by the U.S. Social Security Administration (SSA), or the customary retirement age for his or her specific profession. The new law does not require judges to modify or terminate permanent alimony when someone retires. The burden is on the payor spouse to prove that such retirement reduces his or her ability to pay alimony. If the court determines that the payor’s retirement will actually reduce or has reduced his or her ability to pay, the burden then shifts to the spouse receiving alimony to prove that the permanent alimony should not be reduced or terminated.

            The Court looks at both party’s financial circumstances and decides if modification or termination is applicable. In determining that a permanent alimony award should be reduced or terminated due to the payor’s voluntary retirement, the court must consider the following factors:

• The age and health of the payor.
• The nature and type of work performed by the payor.
• The customary age of retirement in the payor’s profession.
• The payor’s motivation for retirement and likelihood of returning to work.
• The needs of the receiving spouse and the ability of the receiving spouse to contribute to his or her own basic needs.
• The economic impact that such termination or reduction in support would have on the receiving spouse.
• All assets of the receiving spouse and the obligor that were accumulated prior to the marriage, during the marriage, or after the dissolution.
• The obligor and the receiving spouse’s respectful roles in the wasteful depletion of any marital assets received at the time of the final judgment.
• The income of the receiving spouse and the obligor earned during or after the marriage.
• The social security benefits, retirement plan benefits, or pension benefits payable to the obligor and the receiving spouse following the final judgment of dissolution.
• The obligor’s compliance with the existing alimony obligation.

        In anticipation of retirement, a payor spouse may file a petition for modification of his or her alimony obligation, no more than 6 months before the anticipated retirement date, to be effective on his or her retirement.

Supportive Relationship

            Permanent alimony has always been subject to modification or termination upon a showing of the existence of a supportive relationship. The statute equates such a relationship with “economic support equivalent to marriage” In such a case, the party against whom alimony is sought (payor) has the burden to prove that such a supportive relationship exists or has existed in the 365 days prior to the filing of the petition for dissolution of marriage or the supplemental petition for modification.

            The new alimony law simply clarifies what was already in the statute. As such, the court must reduce or terminate an award of alimony when a supportive relationship has existed with another person (not related by blood or marriage). Section 61.14, Fla. Stat., set forth factors the court must consider in making its determination that a supportive relationship exists (or existed) includes the extent to which the receiving spouse and the other person have held themselves out as a couple, the period of time that the receiving spouse has resided with the other person, whether the couple has pooled their assets or income, and whether the party seeking alimony has been financially supported by the other person.

Conclusion

            Florida’s new alimony law does not eliminate permanent alimony that has been awarded prior to July 1, 2023. Though the new alimony law does eliminate permanent alimony, it also provides for guidance for how long or the duration for which durational alimony will be paid depending on the length of the marriage. The new law also  codifies and clarifies situations where modification or termination of permanent alimony may be appropriate.