Section 61.14(1)(a) of the Florida Statutes addresses alimony modification in the following manner:

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 …, either party may apply to the circuit court … 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 …, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order.

Section 61.14(1)(a), Florida Statutes (2015).

So what about voluntary retirement? Can voluntary retirement trigger an alimony modification? The short answer is yes. Voluntary retirement can be the basis for alimony reduction or termination. The Florida Supreme Court in Pimm v. Pimm has held that voluntary retirement is a factor that can be considered to either reduce or terminate alimony. Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992). However, retirement does not trigger an automatic modification as the Court must still consider all the circumstances.

One of the things that the courts consider is whether retirement is reasonable. To make that determination, the courts 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. Id. at 537. Although the age of sixty-five has become the traditional and presumptive age of retirement, retirement at sixty-five or later may still be deemed insufficient to trigger a modification of an alimony award if it would place the receiving party in “peril of poverty”. Id.

Consequently, as part of the courts’ evaluation of all of the surrounding circumstances, the courts consider the needs of the payee or the receiving party and how a modification, either a reduction or a termination, would impact that party. In assessing those needs, the courts consider all the assets that the receiving party has received or accumulated since the final judgment of dissolution of marriage and any income that those assets generated for the receiving party. Id.

It is also important to recognize that it is typically more difficult to modify an alimony award that has been negotiated by the parties on their own. The Second District Court in Tinsley v. Tinsley has held how “[w]here the alimony sought to be modified was … set by the court upon an agreement of the parties, the party who seeks a change carries a heavier than usual burden of proof.”  Tinsley v. Tinsley, 502 So. 2d 997, 998 (Fla. 2d DCA 1987) (internal citations omitted).

It should be noted that when the payor’s voluntary retirement is a factor in an alimony modification case, the courts do differentiate between an early retirement and a regular retirement, i.e., retirement at the age of sixty-five or later; for example, the Pimm Court has indicated that early retirement or retirement prior to the age of sixty-five is deemed unreasonable and the payor would have a significant burden to show how such early retirement can be deemed reasonable. Pimm, 601 So. 2d at 537.

Now, despite the foregoing, it is important to keep in mind how an alimony award may still be non-modifiable. It is therefore prudent for the payor to review the final judgment and any agreement(s) that it may have incorporated prior to moving forward with a modification action. For example, if the original agreement that the court incorporated contained specific language how alimony was to be non-modifiable, then that alimony award is not subject to modification. The Elbaum court, when addressing the parties’ marital settlement agreement that limited the circumstances that would warrant modification of an alimony award, held how “[t]he parties may waive [the] statutory right to seek modification of alimony provisions in a settlement agreement if the language in the agreement clearly and unambiguously expresses waiver or if the interpretation of the agreement as a whole can lead to no other conclusion but waiver.” Elbaum v. Elbaum, 141 So. 3d 658, 661 (Fla. 4th DCA 2014) (internal citations omitted).

Finally, if an alimony award is actually part of a property settlement, then that award is likewise not modifiable. To determine whether the effect of payment was to provide support or property settlement, the courts once again look at all the circumstances, regardless of the actual wording used in the pertinent provision; in other words, the wording of the pertinent provision is not controlling.

Therefore, when the parties to a divorce work together to reach an agreement on alimony, it is prudent for both parties to take time and think ahead, post-dissolution, and then determine if certain terms and conditions should be included to safeguard that future.