Given Florida’s popularity as a retirement destination, the issue commonly comes up about how to structure alimony when divorcing parties are nearing retirement age. This is a multifaceted question of some complexity.
Negotiated alimony
First of all, the couple can negotiate a settlement agreement that contains an alimony provision reflecting their unique needs and that may be different than what a judge might consider. Obviously, they will look at their ages, earning capacities, likely retirement ages, retirement accounts, investments and other assets. They might also consider whether either has health problems or whether there is a disparity in age.
Whatever the circumstances, an impending retirement by the paying party might cause them to consider a lump-sum, up-front alimony award, since paying monthly, for example, into the future may not be as easy without regular wages. However, if the couple is wealthy, they could adjust their division of property or division of retirement accounts to provide adequate support for both spouses, rather than choosing to agree to alimony.
They might even structure the agreement to trigger an event of support upon one of their retirements such as a lump-sum payment from an investment, for example.
Contested alimony
If a couple nearing older age cannot agree on alimony or a similar arrangement of support using property division, the contested alimony issue would go before the judge in the divorce. Florida judges, of course, hear cases of divorcing people approaching retirement regularly. A spouse in such a trial, then, must be sure to present evidence of need for the person who would receive spousal support, and of ability or inability to pay for the potential payor spouse.
Florida statutes lays out certain factors that must be considered in an alimony decision, some of which are relevant to divorce at this stage of life:
- Lifestyle
- Length of marriage
- Age
- Physical and emotional health
- Financial resources
- Contributions to marriage, including service as homemaker or in support of the other’s career
- Tax matters
- Anything else “necessary to do equity and justice between the parties”
Because getting job training or experience is not usually realistic in advancing age, of the types of alimony allowed under Florida law, the judge is most likely to consider either durational (for a set time period) or permanent. Of course, in a permanent award, the court should weigh the advancing age of the payor spouse considering the financial health of the parties.
Modification of alimony at retirement
If an aging couple does not have a sound arrangement for future support at the time of divorce within their agreement or in an order from the court, at the time one of them retires, either could ask a Florida court to modify or terminate their alimony provisions based on the changed circumstances.
Florida courts have held that in a motion to modify alimony, one relevant factor is that a spouse has reached an age when he or she can access retirement accounts without penalty.
Retirement alone might not be enough to convince a judge to modify the alimony order, however, when the paying spouse has significant assets.
Anyone facing a “gray” divorce at impending retirement age should speak with an experienced Florida family lawyer about these complicated issues.
