USA – FLORIDA Law and Practice Contributed by: Elisha D. Roy, Sasser, Cestero & Roy
parties. See Publication 504 (2021), Divorced or Separated Individuals, IRS.gov (last updated 1 February 2022). Unless agreed to by the parties, all alimony awards are modifiable in amount, and depend - ing on the type, may be modifiable in duration. See Ispass v Ispass, 243 So. 3d 453, 456 (Fla. 5th DCA 2018) (standing for both propositions). The standard to modify alimony is a substantial and permanent change in circumstances that was unknown at the time of the entry of the final judgment or the last order on support. See Valby v Valby, 317 So. 3d 147, 151 (Fla. 4th DCA 2021). For the most part, modifications are generally downward in nature, the paying spouse seek - ing to reduce their obligations, as opposed to the recipient seeking more. That does not mean upward modifications do not occur, but the vast majority are downward. While a future retirement is arguably known at the time of the entry of the Final Judgment, Flori - da Statutes provide that retirement age is in itself a substantial change in circumstance to allow for the modification of an alimony. The payor must be at retirement age as defined by the particular profession (such as police officers and firefight - ers, who often have mandatory retirement) or the Social Security Administration (for most that age is around 67). The request for modification can be filed no more than six months before the expected retirement. 2.5 Prenuptial and Postnuptial Agreements Both pre and postnuptial agreements are rec - ognised in Florida. Prenuptial agreements are differentiated by their entry date. Prenuptial agreements, now referred to as premarital agree - ments, entered after 1 October 2007, are gov -
erned by the Uniform Premarital Agreement Act (UPAA). Prenuptial Agreements, Entered Prior to 1 October 2007 and Postnuptial Agreements The key case law on these agreements is Del Vecchio v Del Vecchio, 143 So. 2d 17 (Fla. 1962) and Casto v Casto, 508 So. 2d 330 (Fla. 1987). The validity of these agreements is determined by a two-pronged analysis. An agreement can be determined invalid by meeting either prong. • Prong 1 – a spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation or overreaching. Masilotti v Masilotti, 29 So. 2d 872 (Fla. 1947). • Prong 2 – a spouse looking to set aside the agreement must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. Once the claiming spouse establishes that the agreement is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowl - edge by the challenging spouse of the defending spouse’s finances at the time the agreement was reached. The burden then shifts to the defending spouse, who may rebut these presumptions by showing that there was either: • a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property and the income of the parties; or
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