Alimony is generally only modifiable based on a change in circumstances, and these facts are brought to the attention of the Court. However, many times a set procedure in the couple's pre-nuptial agreement or separation agreement will specify limited circumstances for modifying alimony and what steps must be taken. Finally, if both spouses voluntarily agree to modify alimony the amount can be changed.
What Must Be Done to Have the Court Modify Alimony?
The party who wants to change alimony must file their request with the court who set the original alimony amount. A substantial change in circumstances must be shown, and this substantial change can be any of the following:
- Change in law
- Cohabitation by the spouse receiving alimony
- Cost of living increase - inflation may justify an increase in alimony
- Decrease in income or loss of job
- Disability - refers to the ability to earn income
- Financial emergency
- Hardship - this usually relieves the payer of alimony from payments
- Increase in income
- Medical emergencies
- New support obligation - this may include new children or some new support required by law
How Would a Prenuptial or Separation Agreement Affect the Change in Circumstances Rule?
As mentioned above, a prenuptial or separation agreement can limit what changes in circumstances can create an alimony modification. For instance, an agreement may state that cohabitation will only terminate alimony if the cohabiting partner is supporting the ex-spouse. If the ex-spouse is supporting a cohabiting partner, then alimony would not be modifiable.
Likewise, an agreement can expand the number of possible changes in circumstances that could modify an agreement. Many states do not have laws that amend alimony if a spouse co-habitats or if the payee spouse becomes disabled. Prenuptial or separation agreements can include conditions for alimony change that otherwise wouldn’t be available.
Although agreements can limit or expand change in circumstances, they cannot contradict state law. If a state law mandates the termination of alimony upon the payee spouse cohabitating with another person, then an agreement cannot change that law. However, if the state law makes it permissive (may rather than must), the agreement could still decide how alimony is determined.
Can a Court Retroactively Modify Alimony?
Retroactive modification means that if a person is allowed to pay less alimony in the future, they will also be forgiven of some of their current debts as though the future payments were always the standard. Courts are supposed to refuse to forgive current debts when modifying alimony but in reality some courts are willing to make an exception.
Do I Need an Attorney to Help Modify Alimony?
Family law issues are often difficult to resolve because people are at their most uncooperative towards their former spouse. An experienced family law attorney can speak on your behalf and help you through this difficult time.