Skilled Family Law Counsel

Durational alimony terminates when either of the parties dies or the recipient of alimony remarries.

In a unique case captioned Dills v. Perez the parties’ marital settlement agreement contained a provision that stated that the former husband’s obligation to pay durational alimony to the former wife was non-modifiable. At the time that the parties got divorced, they entered into a marital settlement agreement that was incorporated into their final judgment of dissolution of marriage.

The parties’ marital settlement agreement required the former husband to pay durational alimony to the former wife for a period of forty-eight (48) months. Additionally, the parties’ marital settlement agreement contained a provision that the former husband’s obligation to pay durational alimony was non-modifiable. Although the parties’ marital settlement agreement contained a provision that the former husband’s alimony obligation would not terminate upon the former husband’s death, it did not specifically discuss the effect that remarriage would have on the former husband’s durational alimony obligation.

The former wife remarried prior to the expiration of the forty-eight (48) month period. The former husband filed a notice of termination of durational alimony. The former wife filed a motion in which she sought to have the husband held in contempt of court and sought compliance with the terms of the marital settlement agreement. This post judgment matter was heard by a general magistrate. The general magistrate ruled that the former wife’s remarriage entitled the former husband to stop making alimony payments to the former wife. The general magistrate reasoned that the former husband’s alimony obligation should terminate upon the former wife’s remarriage because the parties’ marital settlement agreement did not expressly provide for termination of the former husband’s alimony obligation upon remarriage.

The general magistrate’s ruling was appealed to the trial court. The trial court approve the recommendation of the general magistrate and terminated the former husband’s alimony obligation.

The Florida Court of Appeal reversed the trial court’s ruling. The appellate court pointed out that the Florida Statutes provide that durational alimony ends when the alimony recipient gets remarried, or the payor or the alimony recipient dies. Notwithstanding this statute, the parties are free to enter into contracts that contain provisions that no Florida court could impose, as long as these provisions are not against public policy. Parties may agree among themselves that alimony will be non-modifiable.

Since alimony is modifiable where there is a substantial, unanticipated, involuntary and permanent change of circumstances, contractual language which makes alimony nonmodifiable must be unambiguous and clear. Therefore, the sole question before the Court of Appeal in this case was whether the non-modifiability provision in the parties’ marital settlement agreement was unambiguous and clear. In previous cases, Florida courts have held that non-modifiability provisions in marital settlement agreements that prohibit termination of alimony obligations upon remarriage are enforceable. The Court of Appeals in this case agreed with the reasoning contained in the prior courts’ rulings and found that the rationale undergirding these decisions applied to durational alimony awards as well.

The Florida Court of Appeal stated that the possibility that spouses may remarry is a common occurrence, which the Florida legislature contemplated in writing the durational alimony statute. The Court stated that the former husband and the former wife should have contemplated this possibility as well. However, the former husband and the former wife entered into a contract which made the wife’s durational alimony award non-modifiable. The parties are bound by the language contained in their marital settlement agreement. The unambiguous and clear language of the parties’ marital settlement agreement controls over the statutory language. Therefore, former husband’s obligation to pay durational alimony to the former wife for forty-eight months did not terminate upon the former wife’s remarriage. The Florida Court of Appeal reversed the trial court’s ruling and directed the trial court to enforce the former husband’s obligation to pay alimony for the entire forty-eight month period.

To speak with a Palm Beach Gardens divorce attorney to discuss alimony in Florida, contact the Lane Law Firm, P.A.