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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 19636
Experience:  B.A.; M.B.A.; J.D.
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My ex husband is saying that he will be seeking a

Customer Question

My ex husband is saying that he will be seeking a modification of alimony due to his desire to retire at age 56. We were married 23 years and I was awarded permanent alimony. He has been paying me for 4 years. What are the steps that he will have to take in order to file a petition? Will he be allowed to file the petition just because he wants to retire or will he first have to prove to a judge that he has a legitimate reason to retire? Thank you!
Submitted: 5 months ago.
Category: Family Law
Expert:  Bill Attorney replied 5 months ago.

Dear Customer,

Thank You for posting your question to just answer today. This is attorney Bill offering legal information specific to your concerns.

There must be a significant change of circumstances for a Florida Ct to award a modification of a divorce and alimony decree. The change in financial circumstances needs to be an involuntary occurrence; so if the early retirement is not due illness then he wouldn't be entitled to a modification.

He needs to fill out a petition, affidavit and service papers on you at the clerk's office.

The statute in relation to modification states the reasons why an alimony order might be modified :

" orders.—

(1)(a) When the parties enter into an agreement for payments for, or instead of, support, maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party changes or the child who is a beneficiary of an agreement or court order as described herein reaches majority after the execution of the agreement or the rendition of the order, either party may apply to the circuit court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for an order decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order. A finding that medical insurance is reasonably available or the child support guidelines schedule in s. 61.30 may constitute changed circumstances. Except as otherwise provided in s. 61.30(11)(c), the court may modify an order of support, maintenance, or alimony by increasing or decreasing the support, maintenance, or alimony retroactively to the date of the filing of the action or supplemental action for modification as equity requires, giving due regard to the changed circumstances or the financial ability of the parties or the child.

(b)1. The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists."

If his declaration of the change of circumstances is untrue he will be in contempt of court.

Please be patient for my follow up and answer when you request additional clarification or information and REMEMBER TO RATE POSITIVELY TODAY FOR THE INFORMATION RECEIVED.

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Thanks

Attorney Bill

Customer: replied 5 months ago.
I am aware of everything that you state above as I have read all of that online. What I need to know is how he has to go about filing with the court. Does he just go in and file and then the modification is in place as of the date that he files the petition if the judge finds in his favor? Or does he have to prove his reason for wanting to retire at age 56 prior to being able to file the petition?
Expert:  Bill Attorney replied 5 months ago.

No he would file a petition first and serve this on you giving you a chance to write out your answer and response.

There would be a full hearing then on the modification.

Nothing will be modified until either you contractually agree or the court orders.

A full hearing can be dispensed with if you voluntarily agree to a modification with his attorney but you aren't .

required to do so in law and can enforce a full hearing on the matter.

I guess he is hoping that you voluntarily agree to a modification at this stage.

Best

Bill

Customer: replied 5 months ago.
But can he just file a petition because he wants to retire early? "Normal" retirement age is 65 is Florida. He is 56. So can he just go in to the clerk of the court's office and file a petition to modify based on retirement even though he is only 56, or would he have to prove that there is a reason that he would need to retire so much earlier than "normal" retirement age prior to being able to file the petition?
Expert:  Bill Attorney replied 5 months ago.

Yes he is entitled to file.

Under the statute a change of circumstances can justify a petition and will allow him file; that said because the retirement is voluntary it is unlikely that the court will award any modification but has discretion to order the equitable relief on a determination of the complete facts of the request.

Best

Customer: replied 5 months ago.
If his request is that he has a change in income because he is no longer able to continue to do the work that he had been doing due to health issues, what happens? He is a horseshoer. It is a very physical occupation. But most of his peers are as old, or older than he is and they are still shoeing horses. Some of his peers are in their 70s and still working. So what are the steps? He files, then I have to reply? What if I reply and say that I do not agree with his reasoning? What would he have to do in order to prove that he can no longer physically work? Would he even have to do that? Would the court request that he attempt to do something else to earn money? At one point in his career when we were still married, he had 4 people working for him and he basically just oversaw their work. At that point the business actually made more money than when it was just himself and one helper. Would the court say that he should try to do that? He left me in a terrible situation. I was a stay at home mom, he was the breadwinner. He had an affair and is still with the woman. She was also married and subsequently divorced, receiving a substantial lump sum settlement in the millions. My ex mishandled our money so badly that I was left with a house in foreclosure, no retirement, no savings, a car with 186,000 miles on it and $25,000 of marital assets. I used that to pay my lawyer's fees which totaled $65,000. I had to take out a loan to pay the rest. I started working after I filed for divorce and earn $36,000. His reported income at the time of the divorce was $155,000, although he hid income by cashing checks at a currency exchange. He will be "retiring" and living on the money that his girlfriend received from her divorce. I am 58 years old. I do not have a degree so my earning potential is very limited.
Customer: replied 5 months ago.
Am I going to receive a response to the above questions?
Expert:  Bill Attorney replied 5 months ago.

The court considers all the facts outlined in his petition and your response and can only modify alimony in accordance with the statute I outlined.

Because the law is codified in statute that must be followed by the judge despite any other considerations;

if your financial position has in fact deteriorated you can also counterclaim for a modification.

Yes, when you answer there will be a hearing date for you to attend.

The court will either deny or make a modification and he the obligor as referred to in the statute must by a preponderance of evidence produce circumstances necessitating a modification.

SO it is up to him to produce evidence not you in the case of a modification based upon his early retirement.

The court modifies as is equitable but an early retirement so as to reduce his alimony to you would not be equitable and not entertained.

Best

Bill

Customer: replied 5 months ago.
What evidence would he have to provide to prove that he is physically incapable of continuing to work?
Expert:  Bill Attorney replied 5 months ago.

He would need medical certification if he is stating ailing health.

Bill

Customer: replied 5 months ago.
Would a doctor have to testify in court? Aren't medical records inadmissible and considered heresay?
Expert:  Bill Attorney replied 5 months ago.

Medical records are quite often used in divorce cases.

AN objection can be raised by you if you believe the testimony is preferential= and necessary.

Best

Attorney Bill

Customer: replied 5 months ago.
What does the date of the filing of the action mean? "the court may modify an order of support, maintenance, or alimony by increasing or decreasing the support, maintenance, or alimony retroactively to the date of the filing of the action or supplemental action for modification as equity requires" Does that mean the date that he files the petition or the date that the judge makes the ruling?
Customer: replied 5 months ago.
Hi. Can you tell me if I can expect an answer to the above questions, and if so, when?
Expert:  Phillips Esq. replied 5 months ago.

Hello: This isCustomer Welcome to Justanswer! I will be further assisting you with your post.

Expert:  Phillips Esq. replied 5 months ago.

What does the date of the filing of the action mean? "the court may modify an order of support, maintenance, or alimony by increasing or decreasing the support, maintenance, or alimony retroactively to the date of the filing of the action or supplemental action for modification as equity requires" Does that mean the date that he files the petition or the date that the judge makes the ruling?

Response: The date he files the petition.