There are several reasons to request alimony (maintenance) modification.
The most common requests are for “downward modification” (lowering the payments), coming from the person paying alimony (the “alimony payor.”) They are usually connected with some type of unemployment or underemployment. In this sense, the common reasons given for alimony modification requests are similar those given for requests for child support modification.
Alimony payors also commonly request downward modification if the alimony recipient remarries. In that case, there is an almost an automatic basis for modification or even termination of alimony maintenance.
On the flipside, it is also quite common for alimony recipients to request “upward modification” (increasing the payments). This usually happens if there was either a provision in the party settlement agreement allowing for upward modification, or if there was a similar decision after trial. In any case, upward modification requests are almost always made because due to a substantial change of circumstances, the payments are no longer sufficient to meet the alimony recipient’s needs.
In these cases, the court usually applies a standard referred to as “undue financial hardship to the party” in order to decide whether a request for upward modification should be granted. In order to meet that standard, it needs to be established that the court’s denial of an increase in maintenance would pose an undue hardship upon the recipient.
When Can an Alimony Agreement be Modified in New York?
Usually, an alimony (maintenance) agreement can only be modified under the standard of unforeseen or unanticipated change of circumstances. This is why parties need to be very careful in crafting their settlement agreements. If they even remotely anticipate that circumstances may change within the duration of maintenance, they need to add specific provisions for those changes if they want to be able to adjust their agreement accordingly.
Duration is an important term in this context. Alimony maintenance can theoretically be a permanent award that goes on until one party is deceased. However, in nearly every case, it is set or fixed by duration: that is, maintenance ends after a fixed amount of time, be it 2 years or 5 years or 10 years. If there is a change of circumstances within that period of time, your settlement agreement must specifically allow for modification in order for the payments to be adjusted. If your agreement does not stipulate that it can be modified, then you are essentially locked into the payments that the agreement lays out.
This serves neither the payor nor the recipient. On the payor’s end, it locks you into set payments whether or not you can continue to afford them, given your change of circumstances. On the recipient’s end, it locks you into set payments whether or not they are sufficient, given your change of circumstances.
How Soon After a Divorce is Final Could Someone Apply for a Modification to Alimony?
In theory, somebody could apply for a modification to alimony (Maintenance) right away. However, it would not generally make sense to do so. The issue when it comes to alimony modification is not necessarily how much time has passed, but rather what has changed. To measure what has changed, the court looks at what has occurred between the date of the application for modification and the date that the alimony agreement was filed and entered into an agreement of divorce. If they are literally the same day, or are very close together, the chances of proving a change in circumstances are quite slim.
In some cases, however, it makes sense to file for a modification to alimony relatively soon after an alimony settlement is filed. Let’s say the settlement was entered into in January of 2021. If in April of 2021, the payor loses his or her job unexpectedly, that could serve as a basis to apply for downward modification on alimony or maintenance. In a case like that, even though the time period in question is quite short, it represents an arguably significant change in circumstances.
What Factors Does the Court Consider When Dealing with a Modification of Alimony Petition?
There are a number of things the court considers when looking at a modification of alimony (maintenance) petition.
One of the first considerations is whether the filer crosses the initial threshold of proving a substantial, unanticipated change of circumstances (when the maintenance was established in a divorce settlement agreement). If the alimony agreement allows for modification and the filer can prove certain basic elements of the unanticipated change of circumstance, then it essentially reopens the maintenance issue.
At that point, the court considers the same factors that they consider in any maintenance award. They consider the respective incomes of the parties, the assets, the ability to pay, and things of that nature. On the recipient’s end, the court examines their ability to be self-supporting, whether they have a job, and what their expenses are, as compared to what the payor’s expenses are.
Once the threshold of evidence for a change of circumstance is passed, all of the above factors would be potentially admissible at a hearing or trial on the issue of modification of maintenance.
If There is no Evidence Regarding a Significant Change in Circumstances, Will the Petition to Modify Alimony be Dismissed by the Court?
If you present no evidence regarding a significant change in circumstances, your petition can—and should—be dismissed. If one files a motion, one should support it with the relevant documentary evidence that would corroborate the testimony given through their affidavit.
So, for instance, if a payor has been laid off, they should include evidence supporting that fact. This could be a letter from their former employer directly stating that they have been laid off, or a receipt for unemployment payments, which would be indirect evidence that they’ve lost their job through no fault of their own.
If it’s the recipient who is filing and alleging a change of circumstances, they should also corroborate their affidavit with some kind of documentation to show why or how their circumstances have changed. For instance, if they just got evicted from their apartment or lost their lease, then they can include a letter from their former landlord or documents from Housing Court. If they lost a 2d job (which they had at the time of the original divorce, but didn’t provide enough income to meet their needs), they should provide the same corroborating evidence the payor would provide if they lost their job.
Ultimately, though, your case is built on evidence. You need to be able to show what you are claiming. If your case goes before the court, the judge will examine it closely. If they ask what evidence you have to corroborate your claim, and you say you don’t have any, then the court should—and almost certainly will—dismiss your application.
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