Receiving lifetime spousal maintenance in a divorce settlement can beneficial under any circumstances. But we all know life is fluid and circumstances change. So what does lifetime spousal maintenance really mean, and can it be modified?
Consider the following case for insights:
A couple divorced 15 years ago, and the wife was awarded lifetime spousal maintenance. She is planning to retire in a few years, which will significantly affect her income. Her question is, “Can I ask the Court to increase my spousal maintenance to account for my reduced income, and is there a formula that dictates how much I might receive?”
All spousal maintenance orders resulting from a trial can be modified. This means that the award may be increased or decreased in amount or duration if certain criteria are met. Therefore, even a lifetime (sometimes referred to as “indefinite”) award of maintenance may be modified. The only time spousal maintenance cannot be modified is if you and your former spouse reached a settlement that specifically states in writing that that spousal maintenance is non-modifiable as to amount and duration.
How to Modify Lifetime Spousal Agreements
If you want to modify a lifetime spousal agreement, you must show there has been a substantial and continuing change of circumstances since the time of the order warranting a modification. The changed circumstances must not have already been considered by the court when it made its original order.
Moreover, your modification request must be made before the expiration of the spousal maintenance award. So, unlike a lifetime award, if your award was for five years, the request to modify and changed circumstances must occur before the five years has concluded.
In this case, the woman’s impending retirement and her presumable decrease in income could qualify as the prerequisite for “change of circumstances.” This applies as long as the court had not anticipated this when it first awarded the maintenance.
Also, the court may attribute income to her if she is capable of working but chooses not to do so. Thus, the reason for her retirement will be assessed based on these questions:
- Is she retiring earlier than normal retirement age?
- If so, does she plan to or could obtain other employment?
- Did her health force her to retire?
The court will also look at whether any circumstances have changed for her former spouse. If he is of a similar age and also retiring, the Court will consider that fact.
When determining maintenance, there is no “formula” for calculation. The court looks at numerous statutory factors in awarding and modifying spousal maintenance. Many times, the court will use the following model:
- What are the recipient spouse’s reasonable needs in relation to the marital standard of living?
- What income, including interest on investments, does the former spouse have to meet those needs?
- Can the paying spouse meet their reasonable needs, while at the same time making up the budgetary shortfall of the spouse receiving maintenance?
In a modification scenario, the court is unlikely to substantially increase what it previously determined to be a reasonable budget, absent an extraordinary event.
In summary, your spousal maintenance modification request at the time of retirement may be granted for the following reasons:
- If the motive for retirement is reasonable.
- If you cannot replace the income from elsewhere.
- If the fact you would likely retire at your present age was not already taken into consideration at the time of trial when the judge awarded spousal maintenance.
- If your former spouse remains in a similar or better financial position than you.
Contact us at Hallier Lawrence to learn more about spousal maintenance modification.