We are sometimes asked whether an increase of a paying spouse’s income may form the basis for an increase in alimony to the recipient. As with many questions arising in family law, answering this one requires analyzing the case specific details and applying a dose of judicial discretion. The following is a summary of how Florida courts have done so:
Proof Of Substantial Change
Proof of a substantial change in the financial ability of a paying spouse may, by itself, properly support an order for an increase in alimony.[1] However, although a substantial increase in the financial ability of the paying spouse, standing alone, may justify an order of increased alimony, it does not require it.[2] Rather, an increase in the payor’s income justifies an increase in the alimony award only when “equity requires. [3]
Establishment Of Need
One such example of equity requiring an increase in alimony absent an increased need on the part of the payee is when the payor spouse, who was financially unable to meet the recipients needs at the time of the final judgment, later has the ability to pay a greater amount and the recipient spouse’s original needs remain unmet.[4]
Notably, this exception does not apply when the original award of alimony was based upon a contract—the parties’ settlement agreement—and not after a trial where the court made the requisite findings of one’s needs and the other’s demonstrated inability to pay the legally required amount.[5] Where the parties fairly entered into an MSA at the time of dissolution, the trial court should not consider the recipient’s unmet needs at the time of dissolution but must consider only those needs that meet the criteria of a substantial change that was not contemplated at the time of dissolution and that is sufficient, material, permanent, and involuntary.[6]
It’s Complicated
If you are seeking, or facing, an upward modification of alimony based on an increase in income of the payor, I recommend contacting an experienced family law attorney to discuss the specifics of your case.
[1] Bedell v. Bedell, 583 So. 2d 1005, 1007 (Fla.1991).
[2] Id.
[3] See Florida Statute 61.14(1)(a).
[4] Santiesteban v. Santiesteban, 579 So.2d 891, 892 (Fla. 3d DCA 1991).
[5] Eisemann v. Eisemann, 5 So. 3d 760, 762 (Fla. 2d DCA 2009).
[6] Morrison v. Morrison, 60 So.3d 410, 415-16 (Fla. 2d DCA 2011).