Modify or Termiante Spousal Support
A party must show that there has been a material change of circumstances in a motion for modification or termination of spousal support. Only after there is adequate proof of a material change of circumstances can the court grant the motion.
There is a material change of circumstances when there is a decrease or increase in the supporting spouse’s ability to pay support. There is also a change of circumstances when there is an increase or decrease in the needs of the supported spouse.
Failure of the supported spouse to become self-supporting despite the Gavron warning can also constitute a change of circumstances. The Gavron warning refers to the advice given by the court to the supported spouse of their duty to exert reasonable efforts to assist in providing for their own needs.
However, the mere fact that a long time has passed since the original order was given does not constitute a material change of circumstances.
When showing a material change of circumstances, it is also necessary to look at the financial information upon which the original support order was based compared with the parties’ current expenses, income, and needs.
The termination of a companion child support order also operates as a change of circumstances which can be a basis for modification of support. This rule, however, does not apply in the following circumstances:
- The child and spousal support orders are the result 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 result 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.
When a party wants to file a motion for modification based on the termination of a companion child support order, it must be filed no later than 6 months from the date of the child support termination.
Party’s Increased Ability to Pay
The increase in the ability to pay of the supporting spouse does not automatically entitle the supported spouse to an increase in support. It must be proved first that the amount of support originally ordered is no longer enough to meet the needs of the supported spouse.
Cohabitation of Supported Spouse
When the supported spouse cohabits with a partner, there is a presumption that the need for spousal support has decreased. It may constitute a material change of circumstances and may be used as a basis for a modification of spousal support. It is assumed that the income of the cohabitant may be available to the supported spouse and used to decrease expenses.
Retirement of Supporting Spouse
When the supporting spouse has retired, it can also be considered as a material change of circumstances meriting modification of the spousal support order. A spouse may not be compelled to work beyond the usual retirement age of 65 just to pay for the same level of spousal support.
Termination of Spousal Support
A spousal support obligation can be terminated in a variety of ways:
- 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.