Modifying Alimony In Florida If A Recipient Is In A Supportive Relationship
All family law attorneys should know that Florida statute 61.14(1)(b)1 allows a court to reduce or terminate alimony if a supportive relationship has existed between an alimony recipient and a person with whom the recipient resides. In numerous cases, petitions for modification/termination have been filed seeking to reduce or terminate alimony because the recipient was “shacking up.” However, what happens if the marital settlement agreement provides that alimony shall be non-modifiable except under certain circumstances? Does the inclusion of those certain circumstances exempt the application of this statute to the circumstances of shacking up? Yes it does! When divorce parties settle their respective alimony claims with provisions that provide that the alimony is non-modifiable except under certain circumstances, unless one of those certain circumstances is this particular statute, then claiming entitlement to relief under 61.14 is going to fail.
Most permanent alimony provisions cite the normal circumstances that alimony will end when certain occurrences happen, such as death, retirement or remarriage of the recipient party. When a settlement agreement provides for certain circumstances, which will allow alimony to be modifiable, then the parties are held to have had knowledge of the existence of this statute and are deemed to have waived it if their agreement does not include it. In other words, just because the statute is out there, family law practitioners cannot rely upon its existence and leave it out of the “certain circumstances” section of the agreement.
This failure to specify the statute was the specific reason cited by the Florida 4th DCA in the Broward County case of Elbaum v. Elbaum, in affirming a trial court’s dismissal of a petition to terminate or modify alimony. If you don’t specify 61.14 as one of the modification/termination reasons, you can’t use it at a later date. Is this new law? Probably not. However, it could be the basis of a malpractice claim if it can be demonstrated that a reasonable lawyer should have known better than to have left out 61.14. I suspect lawyers will be much more wary of this mistake in the future.
Image courtesy of freedigitalphotos.net by David Castillo Dominici