In Florida, the trial court has the discretion to modify an order of alimony by increasing or decreasing the alimony retroactively to the date of the party seeking the modification filed the petition for modification. F.S. § 61.14.
Florida case law has defined permanent periodic alimony as support that is used to provide for the needs and necessities of life to a former spouse as they have been established in the marriage of the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla. 1980). Florida Statute § 61.14, governs the modification of alimony. This statute provides that when “the circumstances or the financial ability of either party changes" either party may apply for an order decreasing or increasing the amount of alimony and the court has jurisdiction to make orders as equity requires, with “due regard to the changed circumstances of the financial ability of the parties." Id. The alimony may be adjusted retroactively to the date of the filing for such modification. Id. The party seeking the modification carries the burden to justify the change by making a showing of a substantial change in circumstances. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980). The party seeking a change in alimony carries “a heavier than usual burden of proof." Pimm v. Pimm, 601 So.2d 534, 537 (Fla. 1992).
The Florida Fourth District Court of Appeal in Woolf v. Woolf, 901 So.2d 905, 911 (Fla. 4th DCA 2005), established that three fundamental prerequisites must be pled and shown to support a modification to alimony.
First, there must be a substantial change in circumstances since the previous alimony order.
Second, the change in circumstances was not contemplated at the time of the final judgment of dissolution.
Third, the change is “sufficient, material, involuntary, and permanent in nature." Id.(citing Pimm v. Pimm, 601 So.2d 534, 536 (Fla. 1992); Damiano v. Damiano, 855 So. 2d 708, 710 (Fla. 4th DCA 2003).
If the party requesting the modification of alimony fails to plead and prove that (1) there has been a substantial change in circumstances; (2) the change was not contemplated at the time of the final judgment; and (3)(a) the change is sufficient (meaning a substantial change such as a significant decrease or increase in income); (3)(b) material (the substantial change in income materially affects the parties' financial abilities and need regarding alimony); (3)(c) involuntary (a job loss or decrease in income was not voluntarily encountered. i.e., an executive person making $150,000.00 a year cannot voluntarily quit his or her job and work at a fast food restaurant for $8.00 an hour to purposefully seek a reduction in alimony; nor may that person voluntarily refuse to seek comparable employment at a similar income level if a job has been involuntarily lost); and(3)(d) permanent in nature (i.e., if someone is unemployed or has a loss of employment for a few months this is not permanent in nature. The Florida courts have found that a change that persists for more than 1 year with no improvement in sight is permanent in nature; but there are some distinguishable conflicts in several districts throughout the state).
If all of these factors are not present, it is improper for the trial court to modify the alimony payments.
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