Alimony can be one of the most litigated topics in a divorce case. Therefore, it is important to keep up to date with recent case law setting the standards for alimony procedures in the courts. Ensure you are represented by a knowledgeable divorce attorney who regularly implements the new cases into their practice to properly fight for and protect their clients.
In 2018, Florida’s Fifth District Court of Appeals decided a landmark case regarding alimony determinations in the state; Ispass v. Ispass. The appeal was brought by former wife, in response to her supplemental petition to modify the amount and duration of her alimony award being dismissed by the trial court.
The parties divorced in 2000 and former wife was awarded alimony in the amount of $2250 per month and would terminate upon the death, remarriage, or cohabitation of former wife. In 2003, the parties entered another agreement that modified child support, and alimony payments. Per this agreement, the alimony payments would reduce to $1800 per month in July of 2006, terminate when wife reached age 62, and former husband waived his right to reduce or terminate alimony payments based on former wife’s cohabitation. Before her 62nd birthday, former wife filed her petition to modify the alimony award of $1800 and extend the duration past her 62nd birthday. Former wife noted her substantial change in circumstances as a recent cancer diagnosis and death of her partner. Former husband filed a motion to dismiss, claiming the court lacked jurisdiction because the duration of time determined for the alimony payments had expired.
The trial court dismissed former wife’s petition, holding that it lacked subject matter jurisdiction to change the duration of the support award and found that the wife waived her right to modification past her 62nd birthday in the settlement agreement.
The 5th District Court of Appeals reversed the trial court’s ruling. The court of appeals noted first that subject matter jurisdiction refers to the court’s ability to hear and decide a case. Under Florida statute,61.14 trial courts are provided with the authority to hear alimony modification actions where they were originally determined. Further, the statute does not require the court to hold a specific reservation of jurisdiction to modify alimony. Therefore, the trial court had subject matter jurisdiction.
The appellate court also held, that the time had not expired when former wife’s modification petition was filed. “The court retains jurisdiction to enforce the award and to consider modification at any time during the period provided for support.” Kelsey v. Kelsey, 636 So. 2d 77, 78 (Fla. 4th DCA 1994) Time is not based upon when a ruling is entered by the court, but rather when the initial petition was filed. Former wife filed her motion 2 months prior to the expiration; therefore, it was timely, and the trial court had subject matter jurisdiction over the action.
Regarding the authority to modify the duration of an alimony award, the appellate court sought guidance from prior case law and statute. Under Florida Statute 61.14, modification of alimony amounts are permitted upon a showing of substantial change in circumstances. However, courts previously broadened this statute to include a modification of duration as well; until 2011 when statute 61.08 specifically allowed for a modification of durational alimony upon a showing of exceptional circumstances. Therefore, the trial court may extend the duration of the alimony award if the burden of exceptional circumstances is met.
Finally, the appellate court found that former wife did not waive her right to modification of the alimony award. Under Florida law there is a “statutory right to modification unless specifically waived, is incorporated as a matter of law in any agreement or judgment providing for alimony.” Harmon v. Harmon, 629 So. 2d 1011, 1012 (Fla. 4th DCA 1993). The settlement agreement held no specific waiver of alimony modification pertaining to the wife; therefore, no waiver was made.
Overall, the appellate court held that subject matter jurisdiction remains with the court for the duration of the alimony award and further, the time will halt upon the filing of the motion and is not based upon the rendering of an order by the court. Additionally, authority to modify alimony is not limited to the amount, but may also include the duration, upon a showing of exceptional circumstances. Finally, a waiver of alimony modification must be clear and unambiguous.
Alimony can provide significant financial security and support for a spouse and therefore can be a crucial part to your divorce action. Ensure your attorney implements the updated laws and procedures found in case law and informs you of your rights regarding alimony awards. Contact an attorney to discuss your specific divorce proceeding.
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