Changing Spousal Support
There may be a variety of circumstances where a spouse who is either receiving spousal support or paying spousal support wants to change the support payments. Changes to a spouse’s financial situation, employment, health or relationship status, for example, may prompt one spouse to want to change the spousal support payments. Generally speaking there needs to be a material change of circumstances before a court will consider changing spousal support payments. Different considerations apply depending on whether you are changing a spousal support agreement or a court order for spousal support.
Changing an AgreementSpouses may, of course, agree to change their own agreement. Sometimes agreements provide for a review of the support payments under specified circumstances. If spouses do not agree to the changes a court application is necessary. A court could order a change to a spousal support agreement if there was fraud or deception about a spouse’s finances at the time the agreement was made. Spousal support agreements may also be changed if one spouse took advantage of the other spouse and the agreement is significantly unfair. A court could also change spousal support payments under an agreement where that agreement provided for such a review. Outside of these situations, it may be difficult to get a court to order a change to spousal support where the agreement was fairly negotiated and intended to be final. In the event that the court does agree to consider a change, it will be necessary to show a material change of circumstances, discussed in more detail below.
Changing an OrderCourts have the authority to change a spousal support order but they first must be satisfied that there has been a material change in the condition, means, needs or other circumstances of one or both spouses since the last time the matter was before the court. A change will generally be considered a material change if the court would have likely made a different order if those circumstances existed when the original order was made. If the spousal support order was affected by the priority of an order for child support and the child support order ends or is reduced, this will be considered a change in circumstances for the purposes of changing a spousal support order. Other examples could include things like a significant change in income or retirement, or lack of effort on the part of the spouse receiving support to become self-sufficient. If there is a material change the court can change a spousal support order, but the spouse asking for the change will still have to show that the change they are requesting is necessary due to the material change. Some orders will state that certain events will be considered a material change in circumstances without the need of establishing that first with the court. For example, an order may say that a failure to become self-sufficient or to recover from an accident or illness within a set number of years will be considered a material change in circumstances. If the circumstances outlined in the order or agreement occur, an application to change the order can be made without first showing any other material change. However, the spouse asking for a change would still have to show why the change justifies the new order requested. Sometimes a spousal support order will indicate that spousal support is only payable until a specified date or event. A spouse who is receiving spousal support can apply to have the order extended beyond that point in some circumstances. The receiving spouse must still establish a change in their condition, means or needs. They must also establish that the change is needed to relieve economic hardship that is due to the change in circumstances and is related to the relationship or its breakdown. Finally, the spouse must also establish that had the changed circumstances existed at the time the last order was made the order would have most likely been different.
A Word about Review ClausesIn some cases spouses may agree, or a court may order, that the matter of spousal support will be reviewed either in a set amount of time or when a certain thing happens. Including a review clause can help parties reach an agreement despite many uncertainties. The parties themselves can agree on what circumstances will trigger a review and then go on to re-visit the issue of spousal support if and when those circumstances arise. Courts are somewhat more limited as to when they can include a review clause within a spousal support order. Generally speaking review orders are not intended to be an invitation to re-examine the entire issue of spousal support all over again. They may, however, be appropriate when there is a genuine and material uncertainty about the spouses’ finances in the near future. For example, if one spouse is about to move, go back to school or start work, it may be appropriate for the court to include a review clause in the spousal support order. Typically, however, the issues that can be reviewed are limited to avoid trying the whole issue of spousal support again from scratch. If you are looking to change a support order under a court-ordered review clause you should be prepared to argue for the change in the context of the review clause.
Dealing with ArrearsA spouse who has failed to make spousal support payments as required may request that a court cancel or reduce the amount owing. This amount owing is referred to as arrears. A request to cancel or reduce arrears is made by an application to vary. The court will only consider this if there has been a significant and long lasting change that affects the paying spouse’s ability to pay spousal support. The court will look at…
- the needs of the receiving spouse
- the paying spouse’s ability to pay spousal support at the time they got behind
- the paying spouse’s ability to pay now and in the future
- whether paying the arrears would cause undue hardship to the paying spouse
- any explanation regarding a delay in asking for relief from arrears
- any unexplained delay in enforcing arrears