Going through a divorce can be a challenging and emotionally taxing process, and negotiating alimony payments is often one of the most contentious aspects. In Connecticut, alimony is designed to provide financial support to a spouse who may be unable to maintain their standard of living after the dissolution of the marriage. However, circumstances change, and it may become necessary to revisit and modify the initial alimony agreement.
If you are considering modifying your alimony agreement or have concerns about your current arrangement, seeking the guidance of an experienced Greenwich divorce lawyer is crucial. At McConnell Family Law Group, our team of knowledgeable Connecticut divorce attorneys may be able to help you navigate the complex legal landscape, assess your specific situation, and help you determine alimony according to your situation. Contact us today at (203) 541-5520 to schedule a consultation.
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 uncommon 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!
Does Alimony Change If Income Changes
While civil trial judgments are usually final and not subject to modification, family court judgments can be altered due to specific legislative statutes that permit such changes. This is because family relationships are considered to be more important than business ones, justifying additional provisions for adjustments.
Consider a scenario where the primary earner in a family loses their job during a divorce, resulting in a support order based on a reduced income. If this individual later secures a new job with higher pay, it would be unfair for the payee spouse to receive less support simply because the payor spouse had lost their job during the divorce proceedings.
Similarly, if a payor spouse establishes a business that hasn’t yet taken off at the time of divorce, the support order would be based on their current lower income. However, if the business thrives soon after the divorce, leaving the payee spouse with reduced support seems unjust. This is especially true if the payee spouse contributed significantly to the success of the payor spouse by managing household responsibilities and childcare, enabling the payor spouse to focus on their business ventures.
Alimony is designed to ensure that one spouse, often the wife, who sacrifices career opportunities to raise children and support the family, is not penalized for their sacrifices. Therefore, it is reasonable to allow modifications to alimony or child support when the payor spouse’s income increases after the divorce.
Conclusion
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 at (203) 541-5520 or by visiting www.mcconnellfamilylaw.com. Find Peace Through Strength!
| Possible Reasons for Alimony Modification | Description |
|---|---|
| Significant Change in Circumstances | Request a modification from the court if there has been a significant change in financial circumstances, such as loss of job, disability, or serious illness. |
| Remarriage or Cohabitation | Request a modification from the court if the alimony recipient remarries or begins living with a roommate, and their financial needs for alimony decrease. |
| Agreement by Both Spouses | Submit a written agreement to the court for approval if both spouses agree to a new alimony agreement, which may be temporary or for the duration of the alimony term. |
| Retroactive Court Order | A court may make its modification order retroactive to the date the modification motion was filed and served, providing the payor with a credit. Without a court order, the payor cannot unilaterally reduce court-ordered alimony. |
| Prohibition in Divorce Agreement | Some divorce agreements may prohibit either spouse from seeking a modification of the alimony amount. |
| Non-Compliance | Non-compliance with court-ordered alimony can result in fines or the opposing party’s attorney’s fees. Consult an attorney before taking any actions regarding alimony modification. |
