Modifying or Enforcing Spousal Maintenance
Sometimes, the circumstances that existed at the time of a divorce and initial award of spousal support change after the divorce has been finalized. These changes can impact the paying spouse’s ability or willingness to make regular support payments. Below are some tips for dealing with those issues when they arise.
Enforcement of an existing spousal support order or agreement
If the paying spouse refuses to pay spousal support pursuant to a divorce agreement or spousal maintenance order and no agreement can be reached among the parties to either modify the payment amount, frequency, or duration, the receiving spouse will most likely have to return to court to get relief.
The receiving spouse can bring a contempt proceeding which may result in a new order for maintenance payments and may include additional penalties such as fines, or, for repeated failure to pay, even jail time in some states. Some states may also allow wage garnishment as a means to ensure that support payments are made directly from the paying spouse’s employer.
The court may also provide a writ of execution which would allow the receiving spouse to attach other assets of the paying spouse, including bank accounts, or the court could issue a judgment which could, in turn, be used to obtain liens on the paying spouse’s property to pay for spousal support. However, not all states offer these remedies for spousal support.
Modifying spousal support—general rules
Once an award of spousal support or maintenance is made, there are limited circumstances when the award can be modified. To change the amount of maintenance paid, the spouse seeking the modification must make an application to the court for modification. The application to modify the spousal support order must be made while the order is still in effect. Each state has different rules about how long a maintenance order remains in effect.
If the support payments are being made pursuant to an agreement, rather than a court order, the terms of the agreement detailing the amount and duration of spousal support payments will control. In some states, the law permits the support agreement to specify that the payments cannot be modified. If the parties agreed that it could not be modified, even a change in circumstances will not change the obligation to pay spousal maintenance, and no modification will be granted.
But if the settlement agreement does not preclude modification, it may also provide guidance about the circumstances when the award be modified. State laws also differ on what must be proven to modify spousal support when the amount was agreed to by the parties—in some states, the person seeking to modify the award has a higher burden of proof when there was an agreement on the support amount than when the amount was determined by the court.
Circumstances warranting a modification in spousal support
Usually, to get the court to modify a spousal maintenance award, it must be shown that there has been a change in circumstances, and that the change is not just a temporary or short-term change – it must be a circumstance that will continue. In most states, the party seeking the modification must show that the change is “extreme,” “substantial” or “material” to qualify for modification, and even within the same state, the standard may differ slightly depending upon whether the support amount was incorporated into a judgment or order or was part of an agreement or stipulation between the parties.
Some examples of typical “changed circumstances” include:
- Substantial change in income or assets
- Loss of a job or other change in job status
- Financial hardship
This change in circumstances must have taken place after the original order was made or the agreement was signed; requests for modifications that merely revisit the original arguments of the parties without a change in circumstances will not be considered by the court.
Many states have guidelines for spousal maintenance or support based on income, but often the court is free to deviate from these guidelines or standards if the circumstances warrant it.
If your circumstances have changed since your divorce and you think your maintenance payments should be modified, or if your spouse is not paying the required maintenance payments and you need to enforce an existing agreement or order, use our site to quickly and easily connect with a qualified divorce lawyer in your area.
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