If your divorce case included spousal support (sometimes called spousal maintenance or alimony), you might wonder if there will ever be an opportunity to change or modify the support order or if you can ever end the maintenance payments before the originally ordered completion date. New York state law provides for several specific instances in which a support order can be modified or terminated.
What is Spousal Support?
Spousal support is where one spouse pays the other financial support after the end of a divorce. Spousal maintenance is often created to assist the non-moneyed spouse in becoming financially self-sufficient after the divorce. It is usually established for a set time period, often one-third of the length of the marriage. Lifetime alimony is rare and usually occurs when a spouse is aged or chronically ill.
There is a long list of factors New York courts consider in setting an award of alimony. They include:
- Age and health of the spouses
- Children of the marriage and where they live and costs associated with them
- Current and future incomes of the spouses
- Loss of income due to staying home with children or supporting the other spouse’s education or business
- Property owned by the spouses
- The ability of the non-moneyed spouse to become self-supporting
- The length of the marriage
How Does Spousal Support End?
Spousal support automatically ends in one of three ways:
- When the length of time for payments in the court order expires
- If either spouse dies
- If the recipient spouse remarries (unless the order states otherwise)
Spousal support may also end if one spouse cohabitates with someone else if their agreement states this ends the maintenance. It is also possible that the maintenance could be ended if the receiving spouse holds out a new partner as a spouse. When cohabitation or holding out someone as a spouse is involved, the maintenance order generally does not automatically end. A court proceeding is necessary to determine if the situation warrants an end to the order.
Modifying Spousal Support
Spousal support can be modified after the divorce in New York, but the rules determining if modification is allowed depend on how the support was originally ordered.
If the spousal support was ordered by a determination of the court after a trial, then it can be modified in three situations:
- There is a substantial change in circumstances
- More than three years have passed since the order was entered, or
- Either spouse’s income has changed by at least 15 percent since the support was ordered
If the spouses reached an agreement about the spousal support without the court intervening (this can be done through a settlement or via a prenuptial agreement), then the spousal support order can only be modified if it is shown that there has been a significant change in circumstances since the time of entering of the order and the person seeking the modification has to show extreme hardship.
Changes in Circumstance
The kinds of substantial changes in circumstances that a court would consider in modifying alimony include:
- An inability to support one’s self
- Drastic change in the economy impacting one spouse’s financial position
- End of child support
- Illness or injury resulting in an inability to work
- Loss of a job
- Loss of assets or business
- Permanent or temporary disability leave from work
It is important to keep in mind that if the change in circumstances is voluntary (for example, you leave your job for a lower paying position and then want to increase the maintenance you receive), you do not qualify for a modification. Retirement at a reasonable retirement age is the exception to this. The spouse seeking the modification has the burden of proof and must show that there has been a change in circumstances.
If your maintenance was ordered based on a settlement agreement and you have to prove a significant change in circumstances to obtain a modification, it can be very difficult to meet this bar. New York courts have held that loss of employment alone is not considered an extreme hardship in this situation, unless there are no other assets and no prospect of a new job.
Evidence in an Alimony Modification Case
If you or your former spouse is seeking post-judgment modification of spousal maintenance, the types of evidence needed may include:
- Pay stubs as well as commission statement and other proof of income
- Tax returns
- Profit and loss statements from businesses
- Medical records if an illness or injury is involved
- Proof of and valuation of assets
- Testimony about conscious decisions and actions to leave a job or failure to find a job
- Evidence about cohabitating or the representation of a new partner as a spouse
- Economic changes
Modification of spousal support is possible, but is not always easy to achieve. If you are considering seeking a modification to your order of spousal support, talk with your attorney to understand how the law applies in your situation and what a likely outcome would be.