As a practicing divorce attorney, you frequently draft property settlement agreements for your clients and your CFL Designation for Divorce Practitioners gives you the advanced financial knowledge to do so fully and competently. Oftentimes these PSAs include equitable division of the couple’s retirement accounts, whether or not either spouse is yet of the age to benefit from those accounts. If the PSA also includes alimony provisions, does the eventual increased income of the spouse receiving alimony constitute a changed circumstance for which the other spouse can obtain a reduction in the amount (s)he pays?

The District Court of Appeals of Florida, Fourth District, addressed this issue in the 2018 case of Marjorie Gelber v. Gordon Charles Brydger. The parties divorced in 2004 after a 27-year marriage. Per their PSA, Ms. Gelber received over $1 million in property and investments, including several retirement and annuity accounts then valued at $657,327. The PSA was silent as to the amount of income she would receive from these accounts once she reached retirement age, nor did it require her to invade the accounts to obtain the increased income. As part of the final divorce decree, the judge awarded her $6,375 in permanent monthly alimony, despite her then monthly income of $3,437 in wages and investment income.

Anticipated Versus Unanticipated Change

Ten years later, Mr. Brydger sought modification of the alimony award based on changed circumstances; i.e., the fact that Ms. Gelber had reached retirement age and therefore was now eligible to receive the retirement accounts income. In the intervening decade, those accounts had appreciated to over $1 million and her own investments and retirement accounts had appreciated to approximately $1.6 million. All told, her assets now gave her a monthly income of $5,000 in addition to her $1,027 in monthly social security disability and $675 in pension benefits.

The trial court ruled in favor of Mr. Brydger’s modification and reduced his alimony payments to $1,735 per month, holding that Ms. Gelber’s changed circumstance was unanticipated since the income generated by the retirement accounts was not and could not have been attributed to her in 2004. Nor was the retirement accounts income considered or factored into the original alimony award. Ms. Gelber appealed.

Appellate Court Decision

On appeal, Ms. Gelber argued that her increased income at retirement was a foreseeable event at the time of the original divorce decree and therefore an anticipated change of circumstances. Per Florida case law, such anticipated changes preclude alimony reductions. After a reasonably lengthy discussion of said case law, the appellate court held that nothing in it penalized Mr. Brydger for failing to raise at trial an event that had not yet occurred. Thus, the fact that neither the PSA nor the trial court took Ms. Gelber’s eventual retirement income into consideration in making the alimony award did not foreclose the possibility of his obtaining an alimony reduction in the future. In fact, the PSA itself made alimony “modifiable in accordance with Florida Statutes.” Therefore the appellate court affirmed the trial court’s alimony reduction.

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