Modifying & Terminating Spousal Support
A court can only grant a motion for modification or termination of spousal support when there is an adequate showing of a material change in circumstances since the time the order was originally made.
There are a wide variety of situations that fall under the definition of a material change of circumstances. For example, material change of circumstances could mean a decrease or increase in the ability to pay of the paying spouse. It could also refer to an increase or decrease in the needs of the supported spouse.
A material change of circumstances also exists when the supported spouse fails to become self-supporting despite reasonable efforts over some time. This links to our discussion regarding the Gavron warning, where the court advises the party of his or her obligation to exert reasonable effort to provide for their needs.
With that said, the mere passage of time does not serve as a material change of circumstances and may not be used solely as a basis for modification.
When proving a material change of circumstances, it is necessary to compare financial statements and information on which the original order was based and the current financial situation of the parties.
The termination of a companion child support order can also be a material change of circumstances that justify modification of the support order. However, this does not apply in the following circumstances:
- The child and spousal support orders are the results of a marital settlement agreement or judgment that contains a provision regarding what is to occur when the child support terminates;
- The child and spousal support orders are the results of a marital settlement agreement or judgment that provides that the spousal support order is nonmodifiable or that spousal support is waived, and the court’s jurisdiction over spousal support has been terminated; and
- The court’s jurisdiction over spousal support was otherwise previously terminated.
If the basis for the motion is the termination of a companion child support order, it must be filed no later than six months from the date of the termination.
Increase in Party’s Ability to Pay
The fact that the supporting party’s ability to pay has increased does not automatically entitle the supported party to an increase in support. First, there has to be proof that the amount of support originally ordered is not enough to meet the needs of the supported spouse.
The cohabitation of a supported spouse with a partner gives rise to a presumption that there is a decreased need for spousal support. It could be considered as a material change of circumstances and may serve as a basis for modifying a support order. The presumed decrease in the need for support is because the income of the cohabitant or partner may be available to the spouse; likewise, cohabitation can suggest a decrease in expenses.
Retirement of Spouse
The retirement of the spouse paying support is also considered as a material change of circumstances for the purpose of modifying a support order. It is contrary to law and public policy to require the supporting spouse to work beyond the usual retirement age of 65 just to keep up with support payments.
Termination of Support
The obligation to pay spousal support can be terminated in a variety of ways, such as:
- An order for spousal support terminates at the end of the period provided in the order and shall not be extended unless the court retains jurisdiction in the order.
- If a court orders spousal support for a contingent period of time, the obligation of the supporting party terminates on the happening of the contingency. The court may, in the order, order the supported party to notify the supporting party, or the supporting party’s attorney of record, of the happening of the contingency
- Upon the death of either party or when the supported party remarries. The parties, however, can agree in writing that the support will continue despite these.
- When there is a change of circumstances and the court issues a modification order terminating support.
Waiver in Premarital Agreement
A waiver for spousal support at the dissolution of marriage is considered valid if the persons who executed it are considered intelligent, well-educated people and the document was executed with the advice of lawyers for both parties.