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Retirement’s Effect on “Permanent” Alimony By Serena Baldacchino, Daytona Family Lawyer

Florida’s alimony law was overhauled last year. Of note, permanent alimony was eliminated, but only as to initial petitions for dissolution of marriage filed or pending as of July 01, 2023. Though the new law does not eliminate permanent alimony awarded prior to the July 01, 2023 cut-off date, it does codify and clarify situations in which termination or modification of permanent alimony may be possible. 

With the exception of a “non-modifiable” permanent alimony provision in a marital settlement agreement, 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 payor spouse’s retirement. Pursuant to the new alimony law, however, 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. Significantly, the new law does not require judges to modify or terminate permanent alimony when an ex-spouse retires; instead, the burden is on the payor spouse to prove that such retirement reduces her or his ability to pay alimony. If the court determines that the payor’s retirement will in fact reduce or has reduced her or his ability to pay, the burden then shifts to the receiving spouse to prove why the permanent alimony should not be reduced or terminated.

In anticipation of retirement, a payor spouse may file a petition for modification of her or his alimony obligation, no more than six (6) months before the anticipated retirement date, to be effective on her or his retirement. In rendering its decision, the Court will consider both party’s financial situation to determine if modification or termination is appropriate. In determining whether 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

If either you or your ex-spouse is nearing retirement age and you seek to modify or terminate an award of alimony (or seek to avoid such a modification or termination), contact the Rice Law Firm for a consultation with one of our experienced Family Law attorneys for an individualized review of your situation.