With the holiday season upon us, people often find themselves in a financial crunch, (buying gifts, hosting visiting family members, etc…). The burden of these additional holiday expenses can be especially challenging if you’re either paying spousal,/partner support or even receiving such payments yourself.
That’s why it’s not unusual at this time of year for people to reach out to a family law attorney with this critical question: Is a modification in the amount I’m receiving (or paying) warranted?
The short answer is: It depends. That’s because there are factors involved in the process of modifying such a court order.
In California, spousal/partner support orders are generally modifiable as long as the order is in place, unless there’s specific wording in the order that makes it non-modifiable. So long as your order is modifiable, you must then ask yourself if has there been “a material change in circumstances” since the last support order.
In determining whether a spousal/partner support order should be changed, the court must use objective facts to make subjective decisions such as is the support order enough (or too much) and should the support order continue to exist.
A couple of examples of facts the court might consider include:
- Has the supporting (i.e. paying) party experienced a substantial change in expenses beyond his or her control? (e.g. A significant increase in mortgage expenses due to unilateral changes from their mortgage lender.)
- The supported party suffers a major physical disability, affecting his or her ability to make money, again through no fault of their own.
In such cases, the court will re-examine the factors considered in the original court order and determine the possibility of modifying the amount of spousal/partner support.
There are some misconceptions about how spousal/partner support modifications work. A client recently told me, “I was married for 15 years and I’ve been paying spousal support for more than eight years. Isn’t there a rule I should only have to pay for half the length of the marriage/partnership?”
No such rule exists. In fact, the longer the duration of a marriage, the more likely it is the court will extend or allow a support order to go, possibly indefinitely.
Another misconception is that a change in income by either party, in itself, is grounds for a modification of spousal/partner support, (“she is now making way more money than when we were last in court” or “I no longer receive overtime, as I did when the court awarded him spousal support”). Upon addressing this change in a request for modification, the court re-examines ALL of the factors (including additional expenses that a party may now incur that they didn’t before).
When you’re a party in a support matter, you can request the other party’s relevant financial information, regardless of how much time has passed since the court last made orders. In California, there is a form entitled “Request for Production of an Income and Expense Declaration Form After Judgment.” Once a year, you are entitled to mail this form to the other party, at which time they have 30 days to complete and return the form (along with a copy of their most recent tax returns). A failure to comply with this request may expose the other party to fines and/or other penalties.
Such a relatively simple and low-cost effort can shed light on your ability to seek a modification of your spousal support order, providing you helpful information to either support such a request or, in the alternative, to convince you that now is not the time to file.
Spousal support modifications can be a tricky business. To make sure you’re proceeding in the right way, either as the person making payments or the person receiving them, you should seek out professional advice. Find out more about how we can help you determine if a modification is warranted and pursue that modification in court by reaching out to The Law Offices of Ian S. Topf. Free consultation is offered in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning.