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Ruling That Modification of Alimony Had Been Waived In Marital Settlement Agreement Reversed

September 20, 2016 by  
Filed under Uncategorized

Alimony Modification And Waiver

Under Florida law the ability to modify alimony can be waived in a marital settlement agreement.  However,  in the Fourth District Court of Appeals for the State of Florida case of Rosenthal v. Rosenthal the marital settlement agreement did not contain explicit language waiving the parties’ right to modify alimony.  The Agreement’s alimony provision did not reference modification of alimony while the Agreement’s child support section did reference the modification of child support.  There was also a general provision in the Marital Settlement Agreement allowing for the modification of the Agreement.

The Wife argued that the silence of the alimony provision as to the right to seek modification compared with the modification language of the child support provision reflected an intentional waiver of the right to modify alimony and cited to precedent where an alimony provision was found to be non-modifiable  where it did not contain specific language waiving the right to modify.

The Fourth District Court of Appeals rejected the Wife’s argument that the silence of the alimony section of the Agreement as to modification was dispositive of the issue given that there was a general provision allowing for the modification of the Agreement.  The Appellate Court also rejected the Wife’s argument that there was sufficient similarity between the case before it and the precedent the Wife cited to as in the case the Wife cited to the Court had heard parole evidence in addition to just reviewing the agreement to come to its determination that the parties sought to waive the modification of alimony.

While the right to modify alimony can be waived explicitly and there can be an implied waiver under certain circumstances the Rosenthal case makes it clear that it is risky to rely on an implied waiver of the right to seek modification.  If the Marital Settlement Agreement before the court had just stated clearly that there was a waiver of the right to seek modification of alimony the Wife would have gotten what she wanted, no modification of her alimony, and avoided the costs at the trial court and appellate level associated with the issue.

 

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