Alimony Modification: “Supportive Relationship”
Situation:
The Wife was awarded permanent periodic alimony in the initial divorce proceeding. At the time of the trial, the Husband and Wife had been married for 17 years and had one minor child. The evidence showed that the Husband, an accountant, was earning a gross annual salary of $ 75,000. Although the Wife was 47 years of age and in relative good health, she had not worked outside the marital home during the marriage except for brief periods of part-time employment as a child-care provider. The Court awarded the Wife the amount of $ 2,000 per month as and for permanent periodic alimony until she died or remarried. Two years after the Final Judgment was entered, the parties’ child turned 18 and graduated from High School. The Former Wife then commenced living with a male “roommate”. The Former Husband now seeks to modify or terminate his alimony obligation to his Former Wife based on the allegations that she is living with another person, who is supporting her and she, therefore, is no longer in need of the alimony.
Argument:
An award of spousal support (“alimony”) is based on one spouse’s NEED for the support and the other spouse’s ABILITY to pay it. Let’s assume that the trial court correctly determined that the Former Husband had the ability to pay $ 2,000 per month in light of his earnings; and that the Wife was in need of $ w,000.00 per month permanent periodic alimony based on her then-living expenses and lack of a comparable earning capacity (to that of the Husband) not to mention the length of the marriage.
Alimony is modifiable. In order to downward modify or terminate his alimony obligation, the Former Husband will need to prove that a material, permanent and unanticipated substantial change in circumstance has arisen since the date of the Final Judgment. The Former Husband may prove a substantial change with evidence that his Former Wife is no longer in need of the support because she is in a “supportive relationship”. The Former Husband will bear the burden of proving that the Former Wife is in a supportive relationship. Section 61.14(1)(b), Florida Statutes.
During the discovery phase of this modification proceeding, the Former Husband may inquire of his Former Wife as to the nature and extent of her relationship with the roommate. Section 61.14(1)(b)2. lists out circumstances the court will consider in determining whether a “supportive relationship” exists, such as:
a. The extent to which the obligee (here, the Former Wife) and the other person (here, the “roommate”) have held themselves out as a married couple. By way of example, have they used a common mailing address or referred to themselves as “Husband” and “Wife”?
b. The period of time the obligee and the other person have resided together in a permanent place of abode. By way of example, have they lived together for, let’s say, over one year in his or her home and share the same bedroom?
c. The extent to which the obligee or the other person have pooled their assets or income. By way of example, have they deposited their income into a joint checking account and paid common household/ living expenses out of this Account?
d. The extent to which the obligee or the other person has supported the other, in whole or part. By way of example, has the other person paid over a relatively significant period of time for the obligee’s living expenses and/ or made major purchases of assets for the obligee (such as a vehicle)?
e. The extent to which the obligee or the other person has performed valuable services for the other. By way of example, have they shared in all household chores, such as cooking, cleaning, laundry, etc.?
f. The extent to which the obligee or the other person has performed valuable services for the other’s company or employer? Similar to subparagraph e., above, has the obligee assisted in an employment capacity with the other person’s business without remuneration?
g. Whether the obligee and the other person have worked together to create or enhance anything of value? By way of example, has the obligee used her income including alimony to improve the real property of the other person, such as adding a swimming pool or room addition?
h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property?
i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support (similar to a pre-nuptial agreement but without any expressed intention to marry).
j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support?
k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so?
At the time the Former Husband filed this modification proceeding, the Former Wife and her roommate were in an intimate relationship and shared the same bedroom for 18 months. The evidence further showed that they used their residence as a common mailing address and the address was on their Florida drivers’ licenses. Although they did not co-mingle their funds into a joint checking account, they did add the other onto their respective checking accounts as a signer. The Former Wife only works part time, and her roommate pays for a majority of the household living expenses including the rent, utilities, cable, telephone and food. Further, they purchased a vehicle which is held in joint names. In light of these circumstances, the Former Husband may prevail upon the court as to the existence of a “supportive relationship”, of which “ . . . provide[s] economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances . . . .” Section 61.14(1)(b)3., Florida Statutes.
Remember, each case is unique and stands on its own facts. No litmus test exists in determining whether a “supportive relationship” exists.
Dear Debbie: In order for your Former Husband to seek a downward modification or termination of his alimony obligation, he must allege and prove a “substantial” change(s) in circumstance. He cannot merely go into court stating that he has back problems and cannot work. Further, even if your Former Husband should prevail that a substantial change(s) in circumstance have arisen since the Final Judgment and that, based on the competent evidence, he can no longer earn what he was previously, he may still not be off the hook. Alimony requires scrutiny of all available financial resources and this may include his current Wife’s contribution towards the household expenses/ living expenses. I would need to review the parties’ respective financial affidavits and mandatory disclosure in order to give you a more informed opinion. Please feel free to contact my Office for a free initial consultation. The foregoing is not intended as legal advice or a representation. I look forward to speaking with you in this regard.
Garth
Dear Mr.Goodman,
I was reading your comments on permanent alimony. What about this scenerio,Married 27+ yrs.awarded PPAlimony,wife did childcare in her home,is now getting her 1/2 QDRO claim of ret.x retired at 55,is remarried,pastoring a church,supposedly unpaid,lives in free parsonage.He states that he can no longer work,he had back surgery,he performs weddings,funerals,etc..he is a notary.He states that he became pastor of the non-paying church 3/2011,A found web-site that states 10/2010.He sent papers in the mail with pay stubs,bank st.and his tx returns(joint) I have 2 part time jobs,had to file for bankruptcy because of finances,my tax statement shows appr.25k and his and new spouse is 110k+.Do you think the judge would lower or terminate alimony under such circumstances?? can’t afford med ins,etc.my age 55. PS I also put him thru school…. Thanks for any answer :(
Hello Kathryn: Establishing alimony, including modification of an alimony obligation, are based on “need” and “ability”. If a spouse is awarded a certain level of alimony and later experiences an increased need for a greater amount (or if the prior awarded amount of alimony was found not to be sufficient to meet your then-need), you may seek an increase in the obligation. However, the payor would have to have an increased ability to pay, which may be reflective by an increase in income and/ or decreased expense(s). The threshhold determination is whether there has been a “substantial” change in circumstance(s) to warrant an increase in the alimony obligation. The payor having a live-in roommate or paramour may not, in of itself, constitute such a substantial change. Each case is unique. Is the payor now driving a brand new Mercedes or BMW as opposed to the old beat up Honda or Ford previously driven? Did he/ she make any significant purchases recently such as jewelry, a home or even a vacation overseas, which was not part of the prior standard of living during the marriage? Is there an apparent increase in his/ her standard of living? These are but a few of the behaviors I would inquire of to determine if a substantial change has occurred. I hope this helps. Again, each case is dependent on it’s own particulars. If you have any additional questions, please feel free to call my Office to schedule a free initial consultation.
I would love to hear an answer to Alicia’s question above. It would only seem fair that a supportive relationship being a financial resource for the payee would work the same way for the payor… It may not increase alimony but should definitely be a good defense against a request to reduce or terminate alimony if the ex husband isnt gainfully employed anymore but his live in girlfriend pays his bills etc… If you can answer, please do! :)
Dear Alicia: I have reviewed your comment. A payor spouse remarrying does not automatically translate into a substantial change in circumstance warranting an increase in his alimony obligation. A substantial change warranting an increase would involve an increased need for the alimony and an ability to pay the additional amount by the payor. If the payor spouse has more disposable income as a result of his union, and assuming a substantial change in the receiving spouse’s need for more alimony, then I would argue that the law provides for a modification. Basically put, the remarriage is not alone the factor but the payor spouse’s ability to pay the additional need.
Interesting case law example about alimony. I myself am curious to know if you any regarding an alimony’s payer’s “ability to pay.” Does a financially or otherwise supportive relationship between, say an ex husband and their new wife, create or increase an ability to pay?