The Fourth District Court of Appeal recently held that trial courts are able to consider a former spouse’s ability to access retirement accounts without penalty in determining whether there has been a substantial change in circumstances to warrant a downward modification of alimony.
In Gelber v. Brydger, the parties were divorced in 2004. The parties’ marital settlement agreement (“Agreement”) provided that the former husband was to pay $6,375.00 per month to the former wife in permanent periodic alimony, and the former wife would receive various retirement and annuity accounts as part of equitable distribution. The Agreement was modifiable and made no mention of the income which the former wife would receive from the retirement accounts once she reached the age of retirement.
Ten years after the parties’ divorce, the former husband moved for a downward modification of alimony. The former husband argued that although he still had the ability to pay his alimony obligation of $6,375.00 per month, there had been an unanticipated, substantial change in circumstances in that the former wife had reached the age of 59 ½ and could begin taking distributions from the retirement accounts without penalty. The trial court agreed with the former husband that the change in the former wife’s available income from 2004 to 2014 was unanticipated, since the monies generated from her retirement assets could not be attributed to her in 2004. The trial court found that the former wife’s need for alimony had decreased and lowered the former husband’s monthly alimony obligation. The former wife appealed the trial court’s decision on the grounds that her ability to access the retirement accounts without penalty was not an unanticipated change in circumstances.
The Fourth District Court of Appeal affirmed the trial court’s decision, holding that the former wife’s ability to access the retirement accounts without penalty was an unanticipated change in circumstances, since it had not been contemplated at the time of the Agreement, since the Agreement was modifiable, and since equity so required in accordance with F.S.§ 61.14(1)(a).