Spousal Support Modification: What You Need To Know Whether You Pay or Receive Spousal Support

posted by Eric Schutzbank

Alimony is a word that most divorcing parties do not want to hear. The higher income earning spouse doesn’t want to pay to and the lower income earning spouse either doesn’t want to ask for it or isn’t getting enough in support to meet his or her bills. Until the Alimony Reform Act of 2012, family law practitioners could not give their clients any concrete guidance on how much alimony they would pay or receive. Even how long they would pay under a settlement was a guessing game at best. The Alimony Reform Act established durational limits, set an end date for alimony in long-term marriages and established that the amount should be between thirty and thirty-five percent of the difference in income between the parties. The law also set out varying effective dates for when parties paying alimony could seek to terminate or modify their alimony based on the new statute. Those dates are stacked between the date the law went into effect last year and March of 2015.

Grounds for Modification:

Remarriage of or Cohabitation by the Recipient

Under the Alimony Reform Act, alimony terminates automatically upon the remarriage of the recipient. There is no longer a need to go to Court to have alimony terminated in this situation. In many cases, if the spouse who is receiving the support cohabitates (moves in) with someone else with whom they are involved in a romantic relationship (so platonic roommates do not count as cohabitation but could be an economic change in circumstances) before the alimony period ends, the support can be suspended or terminated. Whether or not the Payor needs to file a Complaint for Modification and go back to Court, however, depends upon the language in the parties’ Separation Agreement or Divorce Judgment. In this situation, it is up to the Payor to take the other party to court to request that alimony be suspended or terminated due to the cohabitation of the Recipient Spouse.

Financial Hardships

In today’s economy, legitimate financial hardships are more common. People may lose their job and be forced to accept a lower-paying job despite diligent efforts to find new employment. Illnesses and other unexpected emergencies can place a financial strain on the person who is ordered to pay alimony. In these situations, a judge may temporarily or permanently lower the support obligation to prevent even greater hardships. Alimony is always based in part on the ability to pay. Whether or not you’re entitled to terminate or suspend alimony will often depend on the language in your separation agreement or divorce judgment. It is important that you consult with an attorney to determine if it makes sense for you to attempt to reduce your support.

Financial hardships or unexpected expenses can also result in a recipient going back to Court to seek an increase in the support amount or an extension past the statutory durational limits (which are allowed under the Alimony Reform Act for good cause shown).

Retirement and/or Social Security Retirement Age

The Alimony Reform Act of 2012 also established a permanent end date for all alimony orders. That end date is the age of social security retirement which is currently age 66 (though that is expected to go up in the next few years). If a Payor retires prior to Age 66, he or she can petition the Court to reduce or terminate alimony due to retirement. The recipient can also move for the Court to extend the age past the social security age for good cause shown. Some Judges are taking the position that working full time past age 66 is sufficient to establish good cause to pay past this age. With respect to voluntary retirement, there are a wide variety of factors that the Court will consider before granting a request to terminate alimony under this circumstances. These include, but are not limited to, age of Payor Spouse, Age and financial circumstances of Recipient Spouse, type of job, whether or not Payor is working in a different job while collecting a pension from the retired employment, etc.

Other Changes in Circumstances

To modify any support order, it is necessary to have a material change in circumstances. This can mean many things ranging from illness to changes in a financial situation. If you have experienced a change in circumstances which you believe warrants a change in the support order, you should talk to a lawyer to find out if you qualify for a modification request.

Contempt vs. Modification

A contempt action is different from a modification complaint. A modification is a request to change an order whereas a contempt is a request that the Court enforce an order that is not being followed. If the Payor spouse is not paying the Order, the Recipient Spouse can ask the Court to enforce the Order and find the Payor in Contempt for failing to pay. If you find yourself in a situation where you can no longer afford to pay the Support Order (you lose your job for instance), it is always better to file a Modification before a Contempt Complaint is filed. This shows the Court you respect the process and are taking the necessary affirmative steps to properly seek relief from the existing orders.

Spousal support is designed to help the spouse who made less money or even stayed home to get back on their feet as they enter their new life post-divorce. It is no longer meant to be permanent. If you are considering obtaining a divorce, you should be aware of your potential support obligations and rights. For more information about anything contained in this article, please do not hesitate to contact me at eschutzbank@berid-schutzbank.com.