Why Should Marital Settlement Agreements (MSAs) Be Modifiable?
In the state of Florida when a person files for divorce, there are a series of procedural steps dictated by the court that must be followed including, but not limited to: serving papers to the respondent, preparing financial affidavits, and attending a court ordered mediation. Many marital settlement agreements are a result of the mediation that is mandated by the Courts in which the parties are urged to settle.
The purpose of the mediation is for the plaintiff and defendant (the parties) to try to settle the case before taking the court’s time and resources to settle the divorce through the judicial process. Let me repeat, the parties are subject to a court ordered mediation to try to settle the case before they ever get to see a judge. Should the case be settled during one or more mediations, a MSA is signed by both parties and afterwards, presented to the judge to accept the MSA and issue the Final Judgment of Dissolution.
Either Agree to Pay Permanent Alimony or Spend Tens of Thousands of Dollars on a Trial and Then Be Ordered to Pay Permanent Alimony
Currently in Florida, a long term marriage is defined as lasting 17 years or longer and permanent alimony is the default judgment for long term marriages, unless there are very unusual circumstances in a particular case. Even if a couple is married fewer than 17 years (but more than 10 years), permanent alimony is often the judgment. This is the case of many of my FAR colleagues.
One of our FAR members was married for only nine years but still ordered to pay permanent alimony because his former spouse committed felonies during the marriage (why he divorced her) and the judge felt she would not be employable. In the position that I am in Florida Alimony Reform, I have the privilege of getting to know many people and the particulars of their cases.
What I hear over and over again is that during mediation, a client married 15 or more years is advised to agree to pay permanent alimony if they are the higher earning spouse. These folks are told that they can agree to it in mediation, or go to trial, spend tens of thousands of additional dollars on legal fees, and then be ordered by a judge to pay permanent alimony. Further, what exacerbates the situation is the lawyer for the ex-spouse is also advising their client that they are entitled to permanent alimony.
Does Anyone Really “Agree” to Pay Permanent Alimony?
Those who try to “buck” the system and fight, usually learn the expensive way that they were fighting a losing battle all along. If a couple is married less than 15 years, the fight may pay, but it may not. A person has worked a lifetime to build up a nest egg and understands that it will be split between the spouses, less, of course, the legal fees. If you are told by your attorney that you will likely be ordered to pay permanent alimony, your soon to be ex-spouse’s attorney s telling them to expect to be awarded permanent alimony, is it worth the gamble of your nest egg to go to court and fight what would most likely be a losing battle? The answer depends on the individual. Some people fight to the bitter end, while others take the more cautious, and often, prudent approach and sign a MSA “agreeing” to pay permanent alimony. Should the person who takes the cautious approach be allowed to modify their MSAs once the new alimony laws become a reality? The answer is an absolute YES.
Judges order the parties into mediation. Mediation is not an option. It is a judicial order. Attorneys advise their clients to settle and to use the court as a last resort to settle a case. Although the 2011 changes to the law indicate that permanent alimony should only be used when there is no other form of alimony that would be acceptable, we find that permanent alimony is still more oftentimes ordered than not.
Oftentimes, after the emotional toil is taken and retainer fees are used up, the paying party is told that permanent alimony will probably be ordered by the judge anyway. Many times the lower earning spouse is told by their attorney to EXPECT to receive permanent alimony should they go to trial. Most potential permanent alimony payers conclude, based on the advice of their attorneys that it is beneficial to agree to pay permanent alimony and sign a MSA rather than go to trial, deplete their nest egg on legal fees, and then be ordered to pay permanent alimony anyway.
Bottom line, payers who agree to pay permanent alimony in a MSA are essentially “coerced” into doing so, even though they understand that permanent alimony is a payment until death or face jail if they don’t.
Will the New Law be Considered a Substantial Change in Circumstances to Modify a Marital Settlement Agreement?
Almost all MSAs have a provision that alimony is modifiable if there is a substantial change in circumstance unless the agreement specifically states it is nonmodifiable. While new alimony laws could be considered a substantial change in circumstances under which a person could seek to modify their agreement, ambiguity and inconsistency in the courts will inevitably result in one judge allowing it, and another judge not allowing a modification. The primary goal of Florida Alimony Reform (FAR) is to make the results of cases predictable so that people can settle their cases within the framework of new and fair laws. FAR strives for predictable results and less ambiguity. As a result, the new law must stipulate that MSAs are indeed modifiable to meet the criteria of the new alimony statutes.
Individuals who settled during court ordered mediation should not be punished because they felt coerced or was a prudent financial decision to do so. Application of the new laws should be applied evenly to all people, not just those who were handed permanent alimony orders by judges.