Modifying Non-Modifiable Alimony

Marital settlement agreements frequently contain provisions regarding alimony. Great care must be taken in drafting alimony agreements as the number of payments, amount of the payment, and conditions regarding when alimony will end must all be clear and unambiguous.

Florida Statute 61.08, the Florida alimony statute, contains express provisions that provide that most forms of alimony terminate and end upon the remarriage of the spouse receiving alimony. However, in the recent case of Herbst v. Herbst, the parties agreed that the alimony obligation would be non-modifiable. Typically, agreements that alimony is non-modifiable are included to insure that the payment amount does not change.

However, in this particular case, the provision for non-modifiable alimony was interpreted by the appellate court to require payment of alimony even after the alimony recipient's remarriage to another person. It is therefore good practice to make sure that non-modifiable alimony agreements also include specific provision for termination of the alimony at death or upon remarriage of the recipient.

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