Alimony

Modification of Alimony Awards

Unless the parties have waived alimony or agreed that alimony is not subject to modification, a party can ask a court to modify the alimony if circumstances substantially change.  A court may modify alimony as circumstances and justice require.  In an extreme situation, a court can not only modify the duration or the amount of alimony, but can make the alimony award indefinite.

Retroactive Alimony In A Modification Case?

A court can modify alimony retroactively to a date preceding the date a motion for modification is filed, if the need for such modification is sufficiently demonstrated. Retroactivity is a matter for the court’s discretion. In exercising its discretion whether to allow modification, either retroactively or prospectively, the trial court must balance the needs of the party seeking modification with the interests of the other party. The necessity for balancing becomes pronounced where the spouse receiving the alimony has already incurred expenditures based on an expectation of receiving a certain amount of money, may be placed at a distinct disadvantage due to the unexpected financial hardship of the paying spouse.

But Alimony Can Be Made “Non-Modifiable”

Parties may agree that some, but less than all, of the alimony provisions will not be modifiable by a court. Without the specific statement of “non-modifiability, alimony is subject to modification by a court if circumstances substantially change. It is also possible to make only the amount, or only the duration, subject to modification. Consider the following provision which is but one example of the creativity parties can use in fashioning an agreement…a creativity not available to a Court:

 

                        "The alimony provisions of this paragraph are subject

                        to the further order of the court and may be modified

                        AS TO AMOUNT ONLY based proportionally on any increase

                        or decrease in the Husband’s gross income using calendar

                        year 2006 as a base year.  The alimony provisions with

                        respect to terminating events or date may not be modified

                        by any court of competent jurisdiction."

 

 

 

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