If you have been divorced and are obligated to pay alimony, can that payment amount be reduced due to financial difficulty? The short answer is yes – if an appropriate motion is made, and a substantial change in circumstances is shown. Let’s take a closer look together at how you might find yourself in this situation, and what options you may have.
As we all know, one thing that is true of life for everyone is that it’s constantly changing. Circumstances are going to be different year to year, for any number of reasons – and that can be true of your financial situation as well.
- You may be a small business owner, making great profits one year, but not necessarily the next.
- You may have a well-paying job at the time of the divorce, but get laid-off unexpectedly.
- You, or someone you love, may be involved in an accident, or discover a health condition that leaves you faced with mounting medical bills.
As a result of situations like these, and many others, an alimony obligation that was once quite manageable can suddenly seem overwhelming. In these circumstances, those who are obligated to pay alimony often seek to modify their existing obligation, if possible.
As noted, if your original alimony obligation was determined by a court as part of your divorce, your only obligation for modification is to return to court to seek to have that award changed. You will need to speak with a divorce attorney who knows and understands the law, and who can advise you as to whether or not your change in circumstances might be a sufficient basis for a court to modify your alimony obligation. Ultimately, it will be necessary to prove to the court that you have had a “substantial change in circumstances” since the time that the obligation was initially entered.
What will be considered as a “substantial change in circumstances?” Typically, that decision lies within the discretion of the court, and a court will generally look at all of the evidence you have submitted as to what changes in your circumstances might now render you unable to pay your alimony as you did before. While courts will consider the evidence submitted, those seeking a change in alimony should know that there are a few circumstances in which a court will not agree to modify alimony. Those include:
- Voluntary unemployment or underemployment: Sometimes, following a divorce, one spouse might intentionally decrease his or her income. If a spouse voluntarily quits his or her job or takes a lesser-paying job instead of being laid off, this will typically not be considered a “substantial change in circumstances” by the court.
- If the alimony obligation is part of a reciprocal agreement included in the couple’s property settlement: Sometimes, one spouse may agree in mediation to give the other spouse additional property as part of the division of assets in exchange for not having to pay alimony. In other circumstances, the spouse receiving the alimony may have given up rights to other property in order to receive the alimony. In these cases, courts are unlikely to modify alimony payments upon request of the parties.
- If the change in circumstances was one that should have been contemplated at the time of the original order: Courts usually consider certain life changes, such as retirement, to be reasonably foreseeable. In cases where the life change is foreseeable, courts will generally not modify an alimony judgment.
Clearly, courts have a wide degree of discretion and latitude in deciding whether or not to modify an alimony award, and if so, by how much. The good news though, is that you don’t necessarily always have to rely upon the courts for a modification. If you initially determined your alimony obligation in an agreement with your spouse, you can choose to modify that obligation in the same way.
What does it take to modify an agreement? If both parties are on the same page and willing to make the modification, all that will be necessary is to redraft the portion of the agreement that will be changed and to have both parties acknowledge and accept the change with their signature. If you find yourself in a circumstance where you feel that alimony needs to be modified, regardless of whether you are the payor or the receiver, the best thing to do is to speak to your spouse first. Together, the two of you may be able to come to an understanding and an agreement that will work for everyone.
In some cases, however, and for any number of reasons, one spouse simply won’t agree to a modification f the alimony obligation. In this case, your only viable option may be to attempt to sue the spouse who stops paying for breach of contract and to file a new action with the court. Like any legal process, this will require additional time and money, so attempting to resolve the issue with your spouse first is always the best option if that is a possibility.
If you find yourself in the midst of the divorce process and confronting issues like alimony payment for the first time, or if you have already been through a divorce and you believe that an alimony modification may be warranted, the first and most important step you can take is to seek the advice and assistance of a knowledgeable and experienced attorney.
At The Law Office of Dustin McCrary, we’re here to help. We understand divorce law and how it applies to alimony and any other issue that you might find yourself facing during this process. We would be honored to have the opportunity to help you move through this process smoothly and successfully, and onto the next bright chapter ahead. We understand that this process can be stressful – but with the right help and guidance, it can be manageable. Get in touch with us any time. We look forward to helping you soon.