Modifications or Termination of Alimony

Terms:

In Personam Jurisdiction:
Power which a court has over the defendant personally in contrast to the court’s power over the defendant’s interest in property.

Once a court grants alimony (temporary or permanent), it may later be modified by the court or even terminated completely, under certain circumstances (e.g., a substantial change in the circumstances).  Courts have wide discretion in how they define what constitutes a “substantial change in circumstances” to warrant a change in alimony. 

For example, UMDA § 316 allows the amount to be changed “only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.”  Additionally, if a spouse remarries and the new spouse is wealthier than the ex-spouse, the increased family income could justify a modification of the alimony award. 

Conversely, property divisions are not modifiable.  Thus, despite a change of circumstances, these assets are not transferable to the needier spouse.

Example: Louis and Barbara were married for 20 years before their divorce five years ago.  At that time Louis was a very successful real estate developer.  Accordingly, he could easily afford to give Barbara several million dollars in real estate to settle the property division aspect of their split.  She received no alimony.  Today, Louis and his company are bankrupt.  Yet, Barbara is under no obligation to return any of her original property settlement due to Louis’s financial adversity.

Either party may initiate modification or termination of the award.  Generally, the court that heard the original case has continuing jurisdiction over the parties.  It gets more complicated, however, if the second court gets involved due to the necessity of gaining personal or in personam jurisdiction over the parties.

Example: Fred and Nola were married five years ago in a simple ceremony.  After their recent divorce Nola moved to Texas to be closer to her family.  Fred stayed in Oregon where they lived during their marriage.  Since the Oregon court heard the divorce proceeding, including the decision as to the amount of alimony for Nola, the Oregon court would maintain jurisdiction to hear any proceeding to modify the alimony award.

Modification of Alimony Awards

Courts also have varying ways of administering these modifications.  In California: “a support order may be modified or terminated at any time as the court determines to be necessary.”  See Cal. Fam. Code § 3651(a) (2005).  Furthermore,

An order made pursuant to this chapter [Spousal and Child Support During Pendency of Proceeding] may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.

See Cal. Fam. Code § 3603 (2005).

In considering whether to modify or terminate an alimony award, the court once again looks at the ability to pay vis-à-vis the needs of the recipient.  Often, the need for a decrease in the alimony award stems from a loss of employment.  Conversely, there could be a need to increase an alimony award if the recipient becomes disabled and is not able to work. 

Example: Jason was a highly paid CEO who lived in California.  When he divorced Sonia, he was ordered to pay a significant amount of alimony to her.  After some soul searching, Jason decided he no longer wanted to work as a CEO.  Rather, he quit his job to enter a monastery, thereby giving up his substantial salary.  When he went back to court to request termination of his alimony obligation, the court agreed, even though his resignation and change of lifestyle were voluntary.  See, e.g., In re Marriage of Meegan, 11 Cal.App.4th 156 (1992).

Yet, not all decisions to voluntarily relinquish income are met with the same understanding.  In Tydings v. Tydings, 349 A.2d 462 (D.C. 1975) when a man wanted to retire at age 55, the court did not see that decision as a valid reason to reduce his alimony obligation to his ex-wife.  Regardless of the reason for seeking a modification of alimony, however, the party must be acting in good faith in order for the court to make the change.

Termination of Alimony Awards

Rather than merely modifying an alimony award, courts may instead terminate alimony payments.  One ground for termination is remarriage.  In fact, most states often automatically terminate an alimony obligation upon remarriage of the recipient spouse. 

Example: Elizabeth and Samuel parted ways after 10 years of marriage.  They had one son.  Shortly after the divorce, Samuel married his girlfriend.  As part of the divorce decree, Samuel was awarded spousal support for three years.  They live in a jurisdiction that terminates alimony or spousal support if the recipient remarries.  Thus, despite the fixed period for Samuel’s spousal support payments, the court terminated Elizabeth’s obligation as soon as Samuel remarried.

Remarriage ordinarily has no effect on rehabilitative alimony given the limited duration and purpose of such an award.

On the other hand, many jurisdictions fail to terminate an alimony obligation if there is mere cohabitation even though the continuation of the support obligation in this situation could put a strain on the finances of the payor due to the financial obligation of the new family.  Yet, other jurisdictions feel strongly about preventing the new partner from benefiting from the alimony award.  See, e.g., Hall v. Hall, 25 Ill.App.3d 524 (1975).  Often courts will suspend alimony during this period of cohabitation.  See, e.g., Taake v. Taake, 70 Wis.2d 115 (1975).

For instance, in California:

Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support . . . .

See Cal Fam Code § 4323(a)(1) (2005).

Additionally, the ex-spouse could no longer need alimony if there is an increase in finances via an improved work situation or some other financial windfall.  See, e.g., Carter v. Carter, 584 P.2d 904 (Utah 1978).

Example: When Gladys and James got a divorce a year ago, she was a stay-at-home mom for their three children.  As such, the court awarded her rehabilitative and permanent alimony for two and five years, respectively.  Gladys used the money to return to school for training to become a nurse’s aid.  Her plans changed abruptly when she won the $10 million lottery a month ago.  Afterwards, James petitioned the court for a termination of his support obligations due to Gladys’s change in circumstances.  The court granted his request.  No, she did not share any of her winnings with him.

Another reason an award might be terminated is due to the death of either the payor or payee.  In California: “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.”  See Cal. Fam. Code § 4337 (2005).

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