Years after divorce, it is not uncommon for ex-spouses to have to revisit certain terms of the divorce agreement. Alimony is something that often needs modifying, especially if an ex-spouse loses a significant amount of income or shifts careers. Sudden and severe economic downturns often lead to a spike in alimony modification requests as many individuals are laid off, furloughed, or have their working hours reduced. Other circumstances that might warrant a modification to alimony include a new chronic illness or medical condition, or retirement. Make no mistake, modifying alimony is almost never straight forward. We discuss an example below to illustrate some common pitfalls.
The Law Regarding Alimony Modifications
Modification of alimony is governed by Connecticut General Statutes § 46b-86(a), which provides in relevant part: “[u]nless and to the extent that the decree precludes modification . . . an order for alimony . . . may at any time thereafter be . . . altered or modified . . . upon a showing of a substantial change in the circumstances of either party.” Eckert v. Eckert, 285 Conn. 687, 693, 941 A.2d 301 (2008). The party seeking modification has the burden of proving a substantial change in circumstances. See Arena v. Arena, 92 Conn. App. 463, 467, 885 A.2d 765 (2005). When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. Second, if the court finds a substantial change in circumstances, it may properly consider the motion and based on the General Statutes § 46b-82 criteria, make an order for modification. The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties. Gervais v. Gervais, 91 Conn. App. 840, 850-51, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).
Furthermore, it is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding, base financial awards on the earning capacity of the parties rather than on actual earned income. While there is no fixed standard for the determination of an individual’s earning capacity, it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health. Thus, for example, when a person is by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings.
Ways to Modify Alimony
Show the court that you experienced a “significant change in circumstances” since the alimony order was created or last modified. To determine whether you experienced a substantial change, the judge will look at your financial situation when alimony was last ordered and compare it to your current situation.
The alimony recipient may also lose the right to payments if he or she remarries or begins living with a roommate and the recipient no longer has the same needs for alimony as when it was last ordered.
Both spouses may agree in writing to a new alimony agreement. However, this new agreement must still be approved by the court. An agreement may be extended for the duration of the alimony term, or be for a temporary period (for example, while a payor is furloughed or looking for a new job).
Importantly, a court may make its order retroactive to the date an alimony modification motion was filed and served, thereby providing the payor with a credit. Absent such a court order, the payor is not entitled to unilaterally reduce court-ordered alimony. If you lost your job or ability to pay, you should immediately discuss your exposure with an experienced attorney. Occasionally, divorcing spouses are prohibited from seeking a modification of the amount of alimony due to a provision in their divorce agreement; however, this is exceedingly rare. It is common that the term of alimony is non-modifiable.
Although your ability to pay alimony may be severely hampered before you are able to get a modification, you should not stop paying the court-ordered amount—at least not without consulting an attorney. If you consult an attorney, you can discuss strategies to minimize your exposure for failing to follow a court order. Additionally, you should not assume that you can change your alimony amount without court approval. Non-compliance with court-ordered alimony can result in your having to pay fines or the opposing party’s attorney’s fees.
Example of Pitfalls
We recently represented an ex-husband who was seeking to modify his alimony based upon his recent loss of employment. One of the preliminary questions to examine is why the alimony payor lost his/her employment. That is because if it was on account of “fault” then the court is more likely to base its decision upon earning capacity or decide that the moving party did not establish a substantial change in circumstances. In our case, the ex-husband did not lose his job due to any fault of his own and it was likely that he could show a substantial change in circumstances. This does not necessarily translate to a court suspending alimony completely as the court still has to apply all of the statutory criteria and examine both parties updated Financial Affidavits and compare them to the Financial Affidavits at the time of divorce (or most recent alimony modification). In our case, we expeditiously filed and served a motion to modify so that a court could apply any modification retroactively to the date the motion was served. The problem in our case—like every case—was getting access to the court in order to hopefully get relief for our client. We were given a court date that was five (5) months in the horizon. How was the payor going to pay alimony without income? There are different approaches to this problem, but it starts with communication. That is, our client started documenting and sharing information relative to his job search. Further, we opened dialogue with the opposing counsel to search for solutions as opposed to arguing about positions (granted, there was some of that). There was disagreement regarding whether the alimony should be modified at all. The opposing party was open to it not being paid for a period of time but argued that the unpaid amount should accrue and be paid later. Our position was that there should be no accrual and it should be suspended. Ultimately in this case, we agreed to hire a retired Judge to mediate our matter and we were able to resolve the issue to everyone’s satisfaction within a much shorter timeframe. There was a cost to hiring a private mediator, but it paled in comparison to litigation. It was a more efficient and cost-effective method, and it worked!
The burden of proof is on the moving party to satisfactorily show the court that you are entitled to an alimony modification. Even if, for example, you were to prove that you experienced a significant change in circumstances, the court might determine that a modification is not appropriate on account of other statutory factors that govern alimony. Therefore, it is crucial to have a knowledgeable family law attorney review your situation and represent you in court.
To learn more about modifying alimony or to schedule an appointment with our office, contact us today by calling one of our offices located in Hartford (860) 266-1166, New Canaan (203) 344-7007 or by visiting www.mcconnellfamilylaw.com. We also have offices in New Haven, Stamford, and Niantic by appointment only. Find Peace Through Strength!