As the old cliche goes, “nothing is forever”, including either the award of or agreement to pay permanent alimony. Support obligations are always subject to modification.
However, in order to justify a modification of alimony, the petitioning or moving party must prove (1) a substantial change in circumstances; (2) that the change was not contemplated at the time of entry of the final judgment of dissolution of the marriage; and (3) that the change is sufficient, material, permanent and involuntary.
One should be mindful of the fact that there is a very big difference in modifying alimony downward due to a change in final circumstances, versus a complete termination of alimony. In order to terminate a permanent periodic alimony obligation, one must allege and be able to prove that he or she is no longer able to pay any amount of alimony or that the recipient of the alimony is able to support themselves through their own efforts and abilities.
A recent case from the Third District Court of Appeal, decided on August 18, 2010 offers a good explanation as to the heavy burden involved in terminating permanent periodic alimony. Suarez v. Sanchez, 3rd District Case No. 3D09-1593.
Mr. Sanchez was an eighty one year old gentleman, whose health had deteriorated since the dissolution of marriage was entered, and due to poor health, chose to take a voluntary retirement. Although he had met his burden in establishing a basis for a modification of his alimony payment, he did not meet the very heavy burden of having his payments terminate in their entirety. The evidence presented in the case demonstrated that Mr Sanchez had an annual surplus of approximately $10,000.00; and the former wife had an annual deficit of approximately $19,000.00.
Since the ability to continue to pay something existed, although at a reduced amount, the alimony obligation would continue, even at the age of 81.