Modify Alimony if Your Employment Status Changes

Alimony (a.k.a., spousal support) orders can be modified by the court if you can show a material change in circumstances since the original order was put in place. One possible change in circumstances that could lead to a modified spousal support order is a change in your employment status (e.g., getting a new job or losing your job altogether). If you need to modify your spousal support order due to a change in employment status, you generally have two options. First, you can modify an order through an agreement with your ex-spouse. Second, you can file a motion and ask the court to modify the spousal support order.[1]

Steps

Modifying Alimony Through Agreement

  1. Hire a lawyer. Before you make any moves to modify your spousal support order, you need to hire a qualified lawyer to help. If you plan on coming to an agreement with your spouse, your lawyer can help you negotiate with your ex-spouse, draft an agreement, file your paperwork, and attend hearings. Because you have likely already gone through a divorce, you probably know a good family law layer already.
    • However, if you need to Find a Good Family Law Attorney, you can do so by contacting your state bar association's lawyer referral service. After answering a few general questions, you will be put in touch with qualified lawyers in your area.
  2. Contact your ex-spouse. If you are on good terms with your ex-spouse, contact them and ask if you can have a discussion about your current alimony order. See if there is a good time for both of you to sit down together to work it out.
    • If your employment status has changed for the worse, ask if your ex-spouse would be willing to take less money until you can start making more money again.
    • If things are really bad, you might even ask if you can stop making payments for a period of time.[2]
  3. Negotiate an agreement. When you are asking your ex-spouse to agree to new spousal support terms, he or she may not be very willing to give up their existing payments. Therefore, it might be necessary to negotiate your way to an agreement. If informal negotiations fail, consider mediation.[3] During mediation, a neutral third party will sit down with both parties to discuss common ground. The mediator will try to come up with an agreement that benefits both parties without taking sides or offering opinion. Try some of the following:
    • Ask you ex-spouse if they will take less alimony until you can fix your employment status. In return, you might even agree to pay more in alimony once your situation changes for the better.
    • Ask your ex-spouse if they will take no money for a period of time. Again, you might incentivize your ex-spouse by telling him or her that you will pay more when you are able.
  4. Draft an agreed stipulation. Once you and your spouse come to an agreement about a modified spousal support order, your attorney will need to draft the agreement (also called a stipulation).[4] The agreement should include a detailed description of your changed employment status and why this has led to a need for a modified spousal support order.
    • Additionally, the agreement will have to lay out exactly how much you will pay under the new agreement. Be sure you show your work regarding exactly how you got to that number. The judge will want to know the reasoning behind your agreement.
  5. Sign the stipulation. Both parties will need to evidence their willingness to modify the existing order by signing the new agreement.[5] Both parties should sign in the presence of a notary public. Make sure both parties understand what they are agreeing to before the paperwork is signed.
  6. File your paperwork. Once the agreement is signed, you will need to file your agreement with the court. In addition to filing your agreement, you should also file a copy of the existing spousal support order, a draft order form for the judge to sign, and a caption page. The caption page will identify the parties, the court, and the case number.
    • The court you will file your papers in will be the same court where the existing spousal support order was entered into. The case number you put on your paperwork will be the same case number that appears on your existing order.
    • When you file your paperwork, you may have to pay a filing fee. If you cannot afford the filing fee, you might be able to get a waiver.[6]
  7. Attend a hearing, if necessary. Most modifications are settled without court hearings. The judge will simply look over your stipulation and sign a new order. However, if the judge has questions about the agreement, he or she may require that the parties attend a hearing.[7] If you are required to attend a hearing, make sure you show up for the hearing early so you have time to park and get through security. You will not be allowed to bring in any weapons, drugs, or anything else that could harm others.
    • When your case is called, go to the front of the courtroom with your lawyer. Your lawyer will do most of the talking. Both parties will go back and forth explaining why the agreement should be adopted.
  8. Get copies of the new order. If the judge agrees with you and your ex-spouse, a new order will be signed by the judge reflecting your agreement. make sure you get a copy of the new order as that is the legally binding document that explains your new spousal support obligations.

Filing a Motion to Modify Spousal Support

  1. Hire a lawyer. If you are going to file a motion to ask the court to modify an existing spousal support order, you need the help of a lawyer. A lawyer will be able to craft your argument in a way that persuades the judge in your favor. In addition, the lawyer will know the legal standards and processes that must be met and followed. Because you have likely already gone through a divorce with a lawyer, consider hiring the same lawyer to help you here.
    • If you do not have a good lawyer, contact your state bar association's lawyer referral service. After answering a few questions you will put in contact with qualified lawyers in your area.
  2. Obtain the required court forms. In order to modify an existing spousal support order without an agreement between the parties, you will have to file a motion asking the court to change the order on your behalf. To do this, your lawyer will either need to draft his or her own motion or fill out court approved forms. While your lawyer will fill the forms out, it is important you obtain your own copies so you know what your lawyer needs from you. Court forms are usually available at the courthouse and on the court's website. In general, you will need the following documents:[8]
    • A request for order
    • An income and expense declaration
    • A spousal support declaration attachment
  3. Fill out your forms. Once you obtain copies of all the required forms, look through them to understand what type of information your lawyer will need from you. These forms will be used to show the judge why you qualify for a spousal support modification. Therefore, you will need to provide your lawyer with enough information so he or she can draft your forms to meet the legal standard in your state for a modification. In general, you will need to know the following information:
    • What you are requesting (i.e., a spousal support modification) and the amount you are requesting (i.e., how much you want your new payments to be).[9]
    • Your employment information, tax information, supplementary income information, a list of assets, and your average monthly expenses.[10]
    • The facts surrounding your request, which will include why your employment status changed, how it changed, and when it changed. You will also need to describe the job skills you have and the current job market outlook for you based on those skills.[11]
  4. File your forms. Once the proper forms have been filled out, you will need to file them with the same courthouse where your existing spousal support order was executed. When you go to the courthouse to file your paperwork, be sure you bring at least two copies along with the originals. The court will keep the originals but will give you one copy to serve on your ex-spouse and another copy to keep for your records. When you successfully file your paperwork, the clerk of courts will stamp your documents as "filed".
    • When you file your paperwork, you may be required to pay a filing fee. The filing fee will vary from state to state, and even county to county. If you cannot afford the filing fee, you may be able to ask for a waiver.[12]
  5. Schedule a hearing date. After your paperwork is filed, the clerk will set a hearing date and write that date on your paperwork.[13] Make sure you remember this date and put it on your calendar.
  6. Serve your ex-spouse. Once everything is finalized at the courthouse, you will have to serve a copy of your paperwork on your ex-spouse. When you serve another party, you are notifying them of the action against them and giving them a chance to respond. In order to serve someone, you need to hire a server who is over the age of 18 and who is unrelated to the case. The server will physically hand your paperwork to the other party or mail it to them.[14]
    • Once the other party has been served, they will have a short period of time to respond before the hearing.
  7. File the proof of service form. After the server serves your ex-spouse, they will need to fill out a proof of service form and return it to you. A proof of service form asks the server to swear, under oath, that they have properly served the other party. This form is used to let the court know that everything has been done properly.
    • Once the proof of service form has been filled out by your server, you will need to file it with the court.[15]
  8. Attend your hearing. On the date of your hearing, arrive at the courthouse early so you have time to park, get through security, and get settled. You will not be allowed in the courthouse with weapons, drugs, or anything else that could hurt others. Also, make sure you bring copies of all your paperwork, particularly documents that support your argument that circumstances have changed due to an employment status change. Once through security, find your courtroom and wait for your case to be called.
    • When your case is called, move to the front of the courtroom. Your lawyer will present your case to the judge. Your lawyer will probably present financial information, testimony from your previous and present employers, and any other information that will help make your case.[16]
    • If the judge asks you questions, answer them briefly but honestly. Stick to the facts and do not ramble.
  9. Keep copies of the new court order. When the hearing is over, the judge will make a decision and sign a new spousal support order. In some courtrooms, the clerk will draft the order. In other courtrooms, you will be asked to prepare the order yourself.[17]
    • If you succeed with your motion to modify the spousal support order, the new order will reflect the modification and you will be required to pay the new amount.
    • If your ex-spouse succeeds in defending against your motion, it will be denied and the original order will remain in effect. If you do not agree with the judge's decision, you might be able to appeal to a higher court. An appeal is only available when the judge made a legal error (as opposed to a factual one).

Evidencing Your Change in Circumstances

  1. Analyze your current spousal support order. In most states, some spousal support orders cannot be modified. Therefore, it is important to look through your existing order to make sure it is one that can be changed. Spousal support orders can usually not be modified if there is an express agreement between the parties that the order is non-modifiable. This express agreement may either be in writing or oral.
    • In addition, spousal support orders that have a fixed duration can generally not be modified. In other words, if your spousal support order has a specific end date, it may not be able to be modified.
  2. Examine the law in your state. Most states will allow a spousal support order to be modified only when the moving party can show a material and substantial change in circumstances since the most recent order. The judge will look at all the facts and circumstances of your case when making this determination. The court, in making a determination, will weigh the following factors:
    • Your current ability to pay support, which is based solely on your current financial and employment circumstances (not on past or future circumstances).
    • Your ex-spouse's needs.
    • The balance of hardships, which will be used to look at the burden of spousal support on each party.
  3. Determine the particular legal standards in play. In the case of a change in employment status, the judge will be particularly interested in knowing why the change came about. If the change in employment was within your control (i.e., you were fired for wrongdoing, you quit, or you changed jobs to make less money), the judge might not modify the order. However, if the change was out of your control (i.e., you were laid off or injured on the job), the judge may be more likely to modify the order for you.
    • Additionally, if your change in employment status is likely to result in only a temporary reduction in income, the judge might reduce your spousal support obligations on a limited basis. In these circumstances, the court might order that payments be reduced until you become reemployed.
  4. Provide current financial information to the court. The financial information you present to the court must represent your current circumstances. If the only evidence supporting your modification motion is outdated, the court may simply deny your motion outright.
    • It is important that you ask for the modification as soon as the change in employment status occurs. If you wait, you will not be able to to change your spousal support obligations as of the date your employment status changed. In other words, you cannot modify a spousal support obligation retroactively. The judge will only be able to modify your obligations as of the date you file your motion.[18]

References