In this post, I’m going to explain how to modify or terminate alimony. The first thing I want to tell you, before I go into the reasons for it and how to do it, is to realize that modification and termination are two different things we should be asking for. In some strange cases, you may have to ask for modification to zero, which is technically not a termination. In that case, there may be an alimony obligation that cannot be terminated because each type of alimony has a different modification ground. If you cannot terminate the duration, you can eliminate the dollar amount. That will end the obligation, but it’s technically a modification in that case.
Types of Alimony
First, let me talk briefly about the types of alimony and what the underlying basis for modification would be.
First you have open durational alimony, which can be modified for many reasons with no great limitations. Then there’s reimbursement alimony, which is for the compensation of a spouse that helped another spouse obtain a valuable learning degree or some other valuable asset. That’s not really in the nature of alimony, but there still is a repayment obligation. They call it alimony because there’s no other way to do it. That too can be modified without any restrictions.
Next there’s rehabilitation alimony. That can have some limitations. Rehabilitation alimony is used to help a spouse who is economically disadvantaged during a relationship to get back on his or her feet. That can be extended or modified if the issues that were anticipated do not occur. For example, if the spouse was supposed to get education or work experience and that did not occur, it can be extended.
Lastly, there’s limited duration alimony, which is alimony for a specific period of time. That can be amended in the ways I’m going to discuss. But the unique issue to limited duration, which is probably the most common that we see, is that you can modify the amount, but you cannot modify the duration. As I mentioned earlier, in certain cases you want to modify to zero instead of terminating alimony. Limited duration alimony would be one of those cases where you might actually be looking for that kind of unique adjustment.
Reasons for Modifying or Terminating Alimony
Now let’s talk about the things you’ll need to know in order to modify alimony. First, you’re going to need to know the reasons why a modification may be appropriate.
Based on the agreement you entered or what your court order says, most alimony obligations are reached by an agreement between the two parties. They may have specific reasons or prohibitions for and against modification and termination. So, you first turn to that agreement, or the court order, but usually court orders don’t have many restrictions or even contemplate modification terms.
Then there’s remarriage, cohabitation, actual and prospective retirement, and a material and substantial change of circumstances. I’ll explain each of them in detail.
This one should be obvious. If the other party has remarried, you have a good chance of terminating alimony. It would also apply to civil unions and domestic partnerships.
Cohabitation is a unique and troublesome case in that it’s difficult to prove, but the recent amendments from 2014 allow you to modify or terminate cohabitation if you prove cohabitation. But the other party can return if that cohabitation ends, which is problematic because it gives them the option of just kicking the person out of the house and going back for alimony if they lose.
Actual and prospective retirement
This factor was also part of the 2014 amendments. It used to be that if you had an alimony obligation and you were about to retire, you couldn’t retire because you needed to make sure that you were going to modify or terminate your alimony. The issue was that you couldn’t modify or terminate your alimony until you actually retired. A lot of people would file and say they would like to retire. In response, the courts would say there had been no change of circumstances and deny it. Now that individual would be retired, but they would also have their alimony obligation intact.
It was a horrible catch-22 people were caught in. They remedied that with the 2014 amendment, so now you can prospectively retire. If you reach retirement age for your profession, which generally is going to be 65, it’s presumed to be a good faith retirement and it’s the other party’s obligation to show why that could not be the case. There are some cases where retirement much earlier can be appropriate. The common example I use would be police and firemen, who may go on the force at their late twenties and come out in their late forties and retire. That may be appropriate in some cases, and it may not be, but that’s why we have the new amendment and the statutes to determine what you need to do.
Material and substantial change of circumstances
Material and substantial change of circumstances is hard to discuss because there’s no clear definition to what that could be. Obviously, any significant increase or decrease in income would be grounds to modify the alimony. As a guide, I’d say over a 20% change usually is something the courts will consider substantial. Loss of a job, being out of work, medical disabilities, and anything else that’s going to cause a substantial change in either your income or a substantial increase in the other party’s income.
Those are the basic reasons to seek a modification. Now let me just put into a nutshell the steps you should take when trying to actually get that reduction or termination. Women & Men eligible for alimony rights.
Important steps to take when seeking alimony modification
The first thing I always tell my clients is to first make an analysis of whether it makes sense to modify alimony or not. First, to even seek the modification, and then whether it makes sense to use an attorney. I say that because a lot of people that come into modifying alimony are a little upset and even angry that they’re still paying alimony to a spouse they found so dis-favorable that they divorced. They’re motivated by that anger and contempt to seek a modification. They may have a very short time left in their term.
A lot of people I’ll meet with in those circumstance, I say, does it make sense for you to hire an attorney? Because in some cases you’re going to spend more than you’re going to get. So, the first step is to see if it financially make sense to move forward to seek a modification.
Second, what I always try to do is address the modification of alimony in a letter to the other party. In 99% of the cases, the other party is not willing to just agree to reduce or terminate their alimony. But, it’s important to try to convince the other party the same kind of cost-reward analysis you’ve already conducted. Is it going to pay for them to fight the request to modify?
Now, more often than not, they still think it is worth it because it’s our initial burden, moving into court, to show that there’s a change of circumstance or reason under the statute to get a modification or termination. A lot of people aren’t willing to agree to the modification or termination.
Filing your motion to modify alimony
The next step, if the letter doesn’t work, is to file a motion to terminate or modify your alimony. That motion needs to have many things attached, depending on the reason, but at a minimum it has to have the agreement or court order for the alimony. It has to have the original or last case information saying that it was filed during the divorce by both parties, and any other financial information that existed then, as well as support for the reason that you need the modification.
This is one of the cases where the more successful you become, the more costly and difficult it becomes. It’s almost a mini divorce, because if you’re successful with the motion, that only says you’ve shown enough to get a hearing. In a hearing, you’re going to exchange discovery, do case information statements, have depositions, and go to early settlement panel and other settlement conferences. You’re going to go through almost everything you did for a divorce, and it’s going to take about a year. That can be very long and very expensive. That’s why the first step is to make the financial analysis about whether it makes sense to go forward, and to urge the other party to do the same.
That’s alimony modification in a nutshell. If you have an issue, I urge you strongly to do a little research. Keep in mind, though, you have to be careful and consult valid sources. And you definitely want to speak to attorney, even if you’re not going to hire one, just to get a sense of whether you’re moving in the right direction and if it’s even worth it for you. If you have any further questions about modifying or terminating alimony, please feel free to contact with Micklin Law Group. You can read more on this topic by visiting our divorce guide . To set up a consultation, call 973-562-0100.