Can I modify my permanent alimony when I retire?

Changes to permanent alimonies may not be easily modifiable.

In general, when a person retires they will make less income than when they were employed.  So, what happens to your permanent alimony obligation when you retire?  If you do not file anything, then the permanent alimony obligation remains the same and you are required to continue paying the same amount that was originally ordered by the family law court.  But, if you do retire, you can potentially petition the family law court for a reduction or termination of your permanent alimony payments.

A recent First District Court of Appeal case dealt with this issue.  In Anderson v. Durham, a family law court in Columbia County heard the Former Husband’s request to modify his permanent alimony obligation because he had retired.  The family law court had a hearing and determined that the Former Husband intent to retire was reasonable, and his intent to retire was not for the intention of avoiding his alimony obligation.  But, despite these findings, the family law court did not reduce the Former Husband’s alimony obligation and denied his request.

The appellate court found this to be perplexing and did not understand why the family law court denied his request to modify his alimony obligation.  The appellate court set forth the necessary legal requirements that the family law court must consider to determine whether a request to retire is reasonable.  The appellate court stated that the family law trial court

must consider the payor’s age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire . . . Even at the age of sixty-five or later, a payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty. Thus, the court should consider the needs of the receiving spouse and the impact a termination or reduction of alimony would have on him or her. In assessing those needs, the court should consider any assets which the receiving spouse has accumulated or received since the final judgment as well as any income generated by those assets.

The appellate court in this matter remanded the case back down to the family law trial court to determine why it made it’s decision to deny the request to modify the Former Husband’s permanent alimony.

If you are considering retiring and wish to modify your permanent alimony obligation or require legal assistance in other areas of Family Law you may always contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at [email protected].