Alimony and Retirement in Florida After Alimony Reform

The Florida Legislature Florida dramatically changed alimony law in the summer of 2023. If you are paying alimony, receiving alimony, or approaching retirement after a Florida divorce, it is important to understand how the current law works before making future financial decisions.

For new Florida divorce cases, courts no longer award permanent alimony as a new form of support. Current Florida law allows alimony in the form of temporary alimony, bridge-the-gap alimony, rehabilitative alimony, and durational alimony when the facts support an award. The court must first determine whether one spouse has an actual need for alimony and whether the other spouse has the ability to pay. It is important to plead an alimony request properly.

The changes to Florida Statute 61.08 do not mean every preexisting permanent alimony order disappeared. Many former spouses still have alimony orders entered before Florida’s 2023 alimony reform. Those orders may still need to be enforced, interpreted, modified, or defended. The correct strategy depends on the final judgment, the marital settlement agreement, the date of the order, the type of alimony awarded, and the facts that have changed since the divorce. Get read to modify and get ready to seek dismissal.

How retirement affects alimony in Florida

Retirement does not automatically terminate alimony in Florida. A person paying alimony should not simply stop paying because he or she retired, plans to retire, changed jobs, or reduced working hours. Some potentially good news for those seeking to modify alimony upon retirement; you may petition well ahead of time.

Under current Florida law, the court may reduce or terminate support, maintenance, or alimony based on retirement only after making specific written findings. The obligor must show that he or she has reached normal retirement age as defined by the Social Security Administration or the customary retirement age for the obligor’s profession, and that he or she has taken measurable steps to retire or has actually retired. The obligor also has the burden to prove, by a preponderance of the evidence, that retirement reduces the ability to pay.

If the court determines that retirement has reduced or will reduce the obligor’s ability to pay, the burden can shift to the recipient spouse to prove why alimony should not be reduced or terminated. The court then looks at the full financial picture, not just the fact that retirement occurred.

Can I file to modify alimony before I retire?

Florida law allows a person paying alimony to file a petition in reasonable anticipation of retirement, but not more than six months before retirement. The modification becomes effective only upon reasonable and voluntary retirement as determined by the court. The judge must consider the retirement factors and the current alimony factors when deciding whether to confirm, reduce, or terminate the alimony obligation. Is the six month requirement enough time? It is likely not enough time to litigate a full supplemental action. It is likely enough time to see if you can get past a motion to dismiss.

This is an important change because retirement planning can take time. A payor who waits until after retirement may face unnecessary arrears, contempt risk, or financial uncertainty. A payor who files too early or without proper evidence may also create problems. Timing matters.

What factors does the court consider in retirement alimony cases?

When deciding whether retirement justifies reducing or terminating alimony, the court considers factors including:

1. The age and health of the person paying alimony (you can see how this dovetails with retirement).
2. The nature and type of work performed (being a construction worker may be considered differently than being a phone sales person).
3. The customary retirement age in that profession (if the age is 70 and you are 55, it could be problematic).
4. The payor’s motivation for retiring and the likelihood of returning to work.
5. The recipient’s needs and ability to contribute toward his or her own basic needs.
6. The economic impact that a reduction or termination would have on the recipient.
7. The assets of both parties.
8. The income of both parties after the divorce. Holding off on a promotion until after a divorce? Maybe out of bounds!
9. Social Security benefits, retirement plan benefits, and pension benefits payable to each party.
10. Whether the payor has complied with the existing alimony order.

These factors make retirement alimony cases fact intensive. Two people may both be “retired”, but their cases can have very different outcomes depending on pensions, investment income, health, lifestyle, work history, the recipient’s need, and the language of the original divorce judgment.

Is permanent alimony still available in Florida?

For new alimony awards, current Florida law does not list permanent alimony as an available form of alimony. Florida Stature 61.08 provides for temporary, bridge-the-gap, rehabilitative, and durational alimony.

However, some people still have older orders that awarded permanent periodic alimony before the law changed. If your case involves an older permanent alimony order, the question is usually not whether a court can award new permanent alimony today. The question is whether the existing order can be modified, reduced, terminated, enforced, or defended under the facts of your case.

Durational alimony after Florida alimony reform

Durational alimony is now one of the most important alimony categories in Florida divorce cases. It provides economic assistance for a set period of time. Under current law, durational alimony may not be awarded after a marriage lasting less than three years. It also terminates upon the death of either party or the remarriage of the person receiving alimony.

Florida law now uses the following marriage-duration presumptions for alimony:

• A short-term marriage is presumed to be a marriage lasting less than 10 years.
• A moderate-term marriage is presumed to be a marriage lasting between 10 and 20 years.
• A long-term marriage is presumed to be a marriage lasting 20 years or longer.

The length of the marriage is measured from the date of marriage through the date the divorce action is filed. Best not to allow a potential change to linger. You might want to plan and structure your conduct to conform to the law.

Current law also limits the length of durational alimony. A durational alimony award may not exceed 50% of the length of a short-term marriage, 60% of the length of a moderate-term marriage, or 75% of the length of a long-term marriage, unless exceptional circumstances are proven. 75% of the length of a long-term marriage might feel like permanent alimony.

What evidence matters in an alimony retirement case?

Whether you are seeking to reduce alimony or defending against a request to reduce alimony, evidence matters. Helpful documents may include:

• The final judgment of dissolution of marriage.
• The marital settlement agreement.
• Prior alimony modification orders.
• Pay stubs, tax returns, and profit-and-loss statements.
• Social Security benefit information.
• Pension, IRA, 401(k), and retirement account records.
• Medical records if health is an issue.
• Evidence of the customary retirement age in the payor’s profession.
• Monthly budgets for both parties.
• Evidence of the recipient’s income, assets, expenses, and ability to work.
• Evidence showing whether the retirement is reasonable, voluntary, strategic, forced, or premature.

A judge will generally want to know whether retirement is real, reasonable, financially necessary, and supported by evidence. The court will also want to understand how any reduction or termination would affect the spouse receiving alimony.

What if my former spouse says they are retiring?

If your former spouse is paying alimony and claims retirement as a reason to reduce or terminate support, you still have rights. Retirement is not a magic word that automatically ends an alimony obligation.

You may need to examine whether the retirement is actually reasonable, whether the payor is still earning income, whether the payor has substantial assets, whether the payor is voluntarily underemployed, whether consulting or part-time work is available, and whether reducing alimony would leave you unable to meet your basic needs.

The court must consider the economic impact on the recipient spouse and the financial circumstances of both parties.

What if I am paying alimony and want to retire?

If you are paying alimony and planning to retire, do not wait until payments become impossible. You should review your final judgment, settlement agreement, retirement income, expected budget, and the timing of your planned retirement.

In some cases, the right step may be filing a petition to modify alimony before retirement. In other cases, the facts may not support modification yet. The answer depends on your age, health, profession, retirement benefits, income, assets, and the financial needs of your former spouse.

Speak with an Orlando or Clermont alimony attorney

Alimony and retirement cases can be financially significant. A mistake can create arrears, contempt exposure, overpayment, or an avoidable loss of support.

Jacobs Law Firm d/b/a Jacobs Family Law Firm represents clients in Orlando, Clermont, Winter Park, Lake County, Orange County, and throughout Central Florida in divorce, alimony, child support, custody, paternity, and post-judgment modification cases. If you have questions about alimony and retirement in Florida, call 407-335-8113 to schedule a consultation.