Can I Modify my Alimony Order?

A divorce is normally comprised of so much more than just the judge’s decree that you and your partner are no longer legally married. Alimony orders, property division orders, child support orders and custody orders all go into shaping what each of your lives will look like post-divorce. All too often, individuals are not happy with the results of these contemporaneous orders and wonder if they can petition the court to amend them after the fact.

Unfortunately for these individuals, the North Carolina courts show strong deference to the trial court’s rulings when it comes to these orders. For example, once the trial judge has entered a final order on how to divide a divorcing couple’s property (“equitable distribution”), this order is final and cannot be modified unless it is taken to the appellate court.

But what about orders of post-separation support (temporary alimony) and alimony? If an order for post-separation support or alimony is entered, it means the trial court found that one spouse qualified as a “dependent spouse” who is economically dependent upon the “supporting spouse.” The initial determination (i.e., whether one spouse is ordered to pay post-separation support or alimony) and the couple’s division of property are fact-specific inquiries that depend on each couple’s particular circumstances. Because each party presumably had a full opportunity to bring the existing facts before the court when the petition for alimony was originally heard, North Carolina courts place a high burden on spouses who seek to modify an alimony order after it is entered.

Post-separation support is essentially temporary alimony payments the court can order once a couple has separated but while divorce is still pending. An order for post-separation support cannot be appealed, but will terminate upon:

1. The date of the order granting or denying permanent alimony.
2. The court’s dismissal of a petition for permanent alimony.
3. The date of entry of absolute divorce if no permanent alimony claim has been filed.
4. The dependent spouse’s cohabitation or remarriage.
5. The couple’s resumption of marital relations if it comes before the court enters an order granting absolute divorce.

There are a number of factors the trial court can take into account in determining whether and in what amount of “permanent” alimony to order, such as marital misconduct, assets awarded in equitable distribution, standard of living during the marriage, a spouse’s contribution as homemaker during the marriage, and each spouse’s relative earnings and capacities.

Although some of these factors are fixed and will not change over time, others will. For example, if the spouse ordered to pay alimony is unexpectedly laid off from his or her job, this will obviously impact their ability to make alimony payments. However, it is important to note that the courts still heavily prefer finality on issues of alimony and that a high burden is placed on the party seeking to modify an alimony order.

Modification of an alimony order requires the party seeking the modification to prove a “substantial change of circumstances” that are related to the needs of the dependent spouse or the ability of the supporting spouse’s ability to pay. If this burden is met, the alimony modification will be retroactive to the date the modification request was filed.

Under certain circumstances, the courts will point-blank refuse to modify an alimony order. These circumstances include:

1. If the supporting spouse intentionally decreased his or her income. If the supporting spouse voluntarily quits his or her job instead of being laid off, this is not considered in the court’s “substantial change in circumstances” analysis.
2. If the alimony payment was part of a reciprocal agreement contained in the couple’s property settlement. For example, let’s say one spouse agreed in mediation to give the other spouse more property under the couple’s equitable distribution arrangement in exchange for not having to pay alimony, and this agreement was accepted by the trial court. The spouse receiving the property cannot generally decide they would prefer alimony payments instead and petition to modify this order.
3. If the changes were contemplated at the time of the original order. The courts consider some life changes, such as retirement, to be objectively foreseeable in any alimony order. This means the court will not modify an alimony judgment just because one spouse eventually decides to retire.

In contrast, other life events do qualify as a significant change in circumstances warranting an outright termination of the supporting spouse’s obligation to pay alimony. These include:

1. Remarriage of the dependent spouse. If the dependent spouse remarries, this can qualify as a substantial enough change that this spouse is no longer considered dependent so as to qualify for alimony from their previous spouse.
2. Dependent spouse’s cohabitation. Along the same lines as the dependent spouse’s remarriage, if the dependent spouse starts receiving support by cohabitating with a new partner, the court can consider this a substantial enough change that this spouse no longer qualifies as dependent for alimony purposes.
3. The date set forth in the order. Some alimony orders provide for periodic payments over a set amount of time rather than in a lump sum payment; for example, maybe your prenuptial agreement set forth that one of you would pay alimony but only for a set period of 10 years. In this case, if this term of the prenuptial agreement was approved by the court, the alimony obligation would automatically terminate on the 10-year date.

Remember, however, that alimony modification does not apply to situations in which no alimony order was originally made. In other words, if you did not ask for alimony the first time around in the original divorce action, you cannot ask for it now.

If you are facing divorce, are interested in petitioning to modify an alimony order, or have any legal issues surrounding these matters, please contact Arnold & Smith, PLLC for a consultation with one of our experienced family law attorneys today. Our team of attorneys are dedicated to fighting for the best interests of our clients and their families on a wide variety of family law matters, from separation and divorce, post-separation support, equitable distribution and alimony to adoption.