If you or your former spouse experience job loss as a result of the coronavirus pandemic, and there are alimony and child support provisions in your separation agreement or the divorce decree, the impacted party may be able to modify the alimony or child support provisions.
Alimony is either modifiable or nonmodifiable. As the terms suggest, if the alimony is modifiable, either party may be able to seek to modify it, depending on the circumstances. If the alimony is nonmodifiable, neither party can seek to modify it, regardless of the circumstances.
Is the Alimony Modifiable?
The first thing you should do is review both the agreement, if there is one, and the court order addressing alimony (or the divorce decree incorporating the agreement). If there is an agreement that provides for alimony, the agreement will state whether alimony is modifiable and whether there are any restrictions on the modifiability. If the agreement is silent as to modifiability, then alimony may be modified. As an alternative, the agreement may state that alimony is nonmodifiable, except for limited circumstances that may include job loss or disability for the payor. Such a provision is often referred to as a disaster clause. If the agreement simply states that alimony is not subject to modification, then neither party can seek a modification regardless of the reasons. If alimony was waived in the agreement, neither party can seek alimony later, regardless of the circumstances.
If there was no agreement, but the court ordered alimony after a trial, then the alimony provision is modifiable. If, however, the court did not award alimony and did not expressly reserve on the issue of alimony for a later date, then neither party can later seek alimony.
How Can Alimony Be Modified?
If alimony is modifiable, the amount of alimony can be increased or decreased “as circumstances and justice require.” This could also mean a reduction of the alimony amount to zero, which would result in a termination of alimony. The period of alimony can also be extended if the recipient petitions for an extension of alimony during the payment period and “circumstances arise during the period that would lead to a harsh and inequitable result without an extension.” In either case, the party seeking a modification must show that there has been a material change in circumstances since the agreement or court order that requires a modification of the amount or duration of alimony.
How Do I Go About Seeking a Modification?
If you are paying alimony pursuant to an agreement or court order (or the agreement has been incorporated into a court order, as is often the case), you must continue to pay the alimony until you have a signed agreement or court order modifying alimony. If you do not, the alimony recipient can pursue breach of contract, contempt, and attorney’s fees claims against you. You can seek a modification by agreement, through court action, or both.
When Is the Modification Effective?
Generally, the alimony modification will take effect on the date provided for in the modification agreement or court order. You can ask that the modification be made retroactive to the date of the event necessitating the modification, but it is within the court’s discretion whether to grant such a request. In other words, the court is not required to grant this request, which is why it is important that you act quickly to seek a modification. If you are not able to reach an agreement to modify quickly with your former spouse, you should consider filing a petition to modify alimony with the appropriate court to increase the chance that the modification will apply to as much of the time period as possible and to increase the pressure on your former spouse to either negotiate or face the cost and risk of litigation.
Child support is always modifiable until the child support obligation terminates. As with alimony, the party seeking a modification must show a material change in circumstances from the date of the last agreement or order addressing child support. These circumstances could be a material change in either party’s income, a change in the custody schedule, or a change in the child’s needs. There is not a definition of what constitutes a “material change in circumstances,” but practitioners often use a rule of thumb of twenty-five percent (25%) for a change in income, meaning that if you don’t get your usual $5,000 annual bonus, and you earn $100,000 per year, you are unlikely to convince the court that there has been a material change in circumstances requiring a modification of child support. If your pay is cut significantly, however, or you lose your job, you have a strong argument that there has been a material change in circumstances. Child support can be modified by agreement or by court order. Unlike alimony, however, the court cannot modify child support to a date prior to the filing of the petition to modify child support. This provides even more reason to file quickly if a reason for modification arises.
If you believe you or your former spouse are facing a job loss, speak with an experienced family law attorney about your options for seeking or defending against a modification.
Author: Catherine McQueen, Esq.
Articles have been Reprinted with permission from the charlotte observer and Mike Hunter.
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