Is “Foreseeable” “Anticipated” in Alimony Modifications?

The change-in-circumstances standard

Modification of an award of alimony requires a change in circumstances. For many years, the Florida Supreme Court has required that this change in circumstances be substantial, involuntary, and permanent in nature and not contemplated at the time of the support award. Sometimes the last factor is referred to as “unanticipated.”

Retirement and the “unanticipated” factor

Is a spouse’s retirement at age 65 “unanticipated” 20 years after entering into a Marital Settlement Agreement? Can alimony be modified once the former spouse retires and begins receiving money from an IRA without penalty? The appellate court in Florida recently decided that just because an event is “foreseeable” to occur in the future, it is not “contemplated and considered” when entering into the Marital Settlement Agreement and therefore is “unanticipated.” In effect, they changed the “unanticipated” factor to a “not contemplated and considered” factor.

Drafting the Marital Settlement Agreement

When writing your Marital Settlement Agreement, the attorney should take careful measures to include all events that are taken into consideration when reaching an agreement for an award of alimony. This will avoid issues in the future.

Do you anticipate a divorce involving alimony? Are you paying too much or not receiving enough alimony and want your alimony modified? Birnbaum, Lippman & Gregoire, PLLC represents clients in Palm Beach, Broward, and Miami-Dade Counties.

Written by Katherine O. Birnbaum, Esq. and Tiffany N. Mody, Esq.