On May 5, 2017, Kyle Stalnaker of Mackey Law Group took on oral argument in front of the Florida Second District Court of Appeal concerning a firefighter’s appeal of the denial of his alimony modification request case. The subject of the appeal was requested downward alimony modification due to retirement.
In Florida a party requesting an alimony modification must show: (i) there has been a substantial change in circumstances; (ii) the change was not contemplated at the time of the final judgment of dissolution; and (iii) the change is sufficient, material, permanent, and involuntary. Of particular importance to the appeal, was element (ii): whether the change (lower income due to retirement) being contemplated/not contemplated at the time of the final judgment of dissolution of marriage.
In the lower Court’s ruling, the retired firefighter had not been allowed to reduce his alimony payment. The change to the law obtained by Mackey Law Group, per a written opinion by the Florida Second District Court of Appeal, is that now that “the change in circumstances” cannot be contemplated at the time the marital settlement agreement is fully executed, as opposed to the “change” being contemplated at the time the final judgment is entered.
This opinion by our Florida Appellate Court is important because based on our crowded Court dockets, more and more cases have a lag period between the date of the settlement agreement and the date of the final judgment. It was during this lag period that the firefighter’s change occurred, leading to his retirement (he failed the physical firefighter test due to a heart condition). The lower Court had ruled that because the change occurred before the Judgment was entered, the firefighter could not reduce his alimony payment.
The Second District stated in it’s opinion: “In cases involving an MSA (Marital Settlement Agreement), the effective date of the agreement establishes the date to which a trial Court should look in determining whether a substantial change in circumstances was contemplated by the parties. This is especially so in cases like this one where there is an extended delay between execution of the MSA and the entry of the final judgment. Were we to adopt (the other side’s) position, we would be effectively, and needlessly, foisting language upon the MSA that the contracting parties did not include, and which would change the terms of the parties’ agreement. We are loathe to do so.”
The hiring of an experienced family law attorney is imperative. Only an experienced lawyer knows how to set up the necessary language and terms in a marital settlement agreement. The terms of a divorce settlement agreement can make all the difference for years to come in a divorce.
-B. Kyle Stalnaker