Leading Delray Beach marital and family lawyer Stacy Beaulieu-Fawcett talks about the issue of alimony and whether or not it can be modified after the fact.
When couples part and file for divorce, unless they are equally footed financially there’s a possibility that the wealthier or higher-earning partner will be required to pay alimony and/or child support to the other. The court decides or the parties agree on who pays alimony and in what amount, and a judgment is entered to that effect. Should circumstances change, it’s not unusual for one party or the other to want to modify the amount of the support. The person paying may want to reduce the amount, or the person receiving it may want to increase it.
The questions on the mind of anyone facing modification of an alimony order – regardless of whether you are the person paying or receiving it – will be:
- Is it possible to get my support modified?
- If so, what does it take to get it modified?
- Is it possible to prevent a modification of alimony?
Whether or not the modification is possible depends very much on the circumstances of the specific case, although there are some general considerations that may apply.
When Modification Can’t Happen
First off, it’s important to note that there are two occasions when alimony can’t be modified:
- Lump sum alimony, which is considered a full and final settlement; and
- If the parties have specifically waived all rights to modifications at the time of the court order. In other words, you can’t waive your right and then change your mind a couple years down the line!
In most other cases, you can apply for a modification and the judge will decide based on your specific circumstances.
Before a court will consider a request for modification of alimony, the petitioner needs to meet the preliminary requirements of a three-pronged test. These are:
1. Change in Circumstances
There must have been a substantial change in circumstances of either party, such as:
- Losing your job
- Becoming disabled
- Entering into a cohabitation situation
- Experiencing a significant increase or decrease in income
Any one or more of these situations could meet the first preliminary requirement of the test to qualify for modification.
2. Unanticipated Change
The change in circumstances must have been unanticipated. Regardless of how many of the first requirements are met, unless the change/s in circumstances are unexpected they don’t qualify. Not only must there be a change, but it must have been unanticipated at the time the final judgment was entered.
3. Material, Involuntary and Permanent
The change must be material, involuntary and permanent. This last requirement has three components to it:
- Material: The change in circumstances must actually be material to the alimony obligation in order for it to qualify for modification. This means it must directly affect the person’s ability to pay alimony, or the recipient’s need for increased alimony. For example, just because you lose your job doesn’t mean you qualify for increased alimony, if you take up a new job directly afterwards or if you have substantial income producing assets. Only if you remain out of work and it materially affects your financial situation would it qualify as a material change.
- Involuntary: The change must be something that you voluntarily undertake. For example, if you decide to leave your job you can’t use loss of employment as grounds for modification. The same applies if you voluntarily commit a crime and lose your job as a result, or if you take on a higher mortgage that leaves you struggling financially.
With retirement, if you retire voluntarily – either before or after age 65 – and try to use this as grounds for modification, the court will carefully examine your history, age, state of health financial position and other related factors before deciding whether to accept retirement as a change in circumstances.
If you are planning to retire, check with your lawyer before doing so to find out whether your situation is likely to qualify for modification.
- Permanent: The change must be something that is permanent in nature. The court will consider loss of employment as permanent if you can prove that you have made a ‘good faith’ effort to find other work and, in spite of that, you can’t keep up your previous level of income over a period of time. Generally, courts accept one year as evidence that the change is permanent. This also means that if the person paying you alimony gets a large, one-time bonus, you can’t file for modification on this basis because it isn’t a permanent change in his or her income level.
All these examples should show that the one thing you can be sure of is that filing for a modification of alimony is very case-specific. If you anticipate any circumstances warranting a modification then consult your attorney as soon as possible. Don’t wait until it has already happened to do so, act immediately to preserve your rights.