Changing the Amount of Spousal Support

When an alimony (spousal support) order is already in place, can it be changed? It depends.

COVID-19 Update: The coronavirus outbreak has resulted in millions of people losing their jobs and courts struggling to continue operations. Continue reading to find out how these changes may affect your ability to pay and modify alimony.

Alimony—also referred to as spousal support or spousal maintenance—is different from child support in many ways. Perhaps the most important difference is that while a court can change the terms of a child support order until the child is a legal adult, in most states, you can end or limit the court’s power over spousal support. In other words, you can build in—or preclude—future modifications (changes) to the support obligation.

All you and your spouse need to do is put a provision in your settlement agreement that states how spousal support can be modified. If a judge decides on spousal support for you, the judge will also decide whether and under what circumstances support can be modified in the future.

If you’re negotiating a spousal support agreement, you can state spousal support is "non-modifiable," which means the amount cannot be changed at all, no matter what happens.The paying spouse might agree to this if the likelihood of a downward reduction seems slim (as where employment is secure or assets are high). The recipient spouse might think it would be easier to persuade the other to pay a higher amount if there’s a no-change provision, and it also means that support should keep coming even if the paying spouse’s employment situation changes.

If you want some future flexibility, you might prefer to state that the amount can change only if:

  • both ex-spouses agree
  • the court orders it
  • either spouse’s income changes by a specified percentage, or
  • one spouse becomes disabled.

If you want to change alimony at a later date, but your settlement agreement is silent on this subject, you can try reaching out to your ex to see if you can come to an agreement. If you can't agree to change to the amount, then you'll have to ask a judge to modify spousal support, and your state’s law will control the matter.

Most courts allow modification if there's a significant change of circumstances. Some states, however, won’t modify spousal support at all—they allow courts to make orders only about child support after the divorce is final.

Often, a court will order a temporary modification, just for the period of changed circumstances. For example, if you're paying support and you lose your job, the court might reduce your support obligation for six months or until you find a new job, whichever happens sooner. If at the end of six months you still haven’t found work, you’d have to return to court and ask for additional time.

How to Change Spousal Support if You've Been Affected by COVID-19

Because of the COVID-19 pandemic, almost all states have issued shelter-in-place orders, which require people to stay home, except for essential needs. States have also ordered nonessential businesses to shut down until further notice. As a result, millions of Americans have lost their jobs and filed for unemployment.

What can you do if you've been financially affected by COVID-19 and owe spousal support? What if you've become ill and can't work? You may qualify for financial relief through local, state, and/or federal programs, which may enable you to pay alimony. If you simply can't pay, and your ex won't agree to a temporary postponement or reduction in support, then you'll need to ask a court for help.

Although most courts are temporarily closed due to COVID-19, some family law courts are still hearing emergency requests. Changing alimony isn't considered an emergency, but your state or local courts may have enacted temporary procedural changes to help those affected by COVID-19.

For instance, the Judicial Council of the California Courts has approved Emergency Rule 13, which makes it easier for people to modify their financial support orders during the COVID-19 outbreak. Search online to see if the judicial branch of your state and/or your local family law court has issued any temporary orders which might be helpful in terms of changing spousal support.

In California, Emergency Rule 13 allows judges to backdate a support order to the date the requesting spouse mailed or served the other spouse with a copy of the request, rather than the date it was filed with the court. This means a judge can make the reduced support amount retroactive to the date you served your ex. Be sure to keep your proof of service to show the court.

Check your local and/or state court website for information on filing procedures. Some courts are allowing motions to be left in outdoor drop boxes so that court clerks can retrieve and file them.

If you have questions about changing alimony, you should speak to a local family law attorney for advice. Family law attorneys and mediators are working remotely and available for consultations and new client meetings via phone or virtual meeting services, like Google or Zoom.

Excerpted from Nolo's Essential Guide to Divorce, by Emily Doskow.

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