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Maintenance/Alimony Modifications

It’s not just child custody or child support orders that can be modified. Orders for spousal maintenance can also sometimes be modified with a Motion to Modify. The criteria for modifying an award of spousal maintenance are as follows:

[a] showing of changed circumstances so substantial and continuing as to make the terms unreasonable […] ┬áthe court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits, and the earning capacity of a party who is not employed.

As such, the threshold question is whether there has been a substantial and continuing change in circumstances which renders the initial maintenance order untenable. This can include things like loss of job, disability, higher income by the party receiving maintenance, etc. In analyzing whether a change in circumstances has occurred, the Court is obligated to look at whether the parties have access to additional resources, as well as their earning capacity. More specifically, if you have re-married or are living with someone, and you benefit from his/her income, the Court is to take that into account; similarly, if you have become unemployed, but still have the ability to earn a wage, the Court must also consider that.

In closing, not all maintenance orders are modifiable in all respects. A court in its discretion can order non-modifiable maintenance which cannot be amended (usually unless the spouse receiving maintenance re-marries or dies). Contact us with questions pertaining to divorce, paternity, child custody, child support, and maintenance.