Reaching a financial divorce settlement can involve a lot of hard work, with intensive negotiations between each party and their respective attorneys. Settlements vary on a case by case basis, but typically involve one party (the payor) paying their ex-spouse (the payee) maintenance or child support. While not ideal, there are situations that can lead to a downward modification of financial support.
The payor can petition the court for a downward modification of a support obligation if there has been a significant change in their financial situation. A significant change of circumstance can include retirement, going on disability, or the loss of employment. If either of these changes occur, then the payor will suffer from a loss of income and will be unable to meet the previously agreed upon amount of maintenance or child support. If a court rules in favor of a modification, the support adjustment can be either temporary or permanent. Most modification requests made due to a loss of employment are temporary, as it is assumed the payer will be able to earn the same general salary again in the future.
Either party to a divorce can request a post judgment modification of divorce if they have to go on temporary or permanent disability. Under the scope of the law, a person who is qualified to receive disability benefits must become unable to earn an income or support themselves as a result of a physical or mental condition.
If one parties’ disability occurs after an original order of maintenance has been issued, then a court will require the petitioner to provide evidence supporting their modification argument. Such proof can include medical records, sworn statements, and an official determination of disability, from either worker’s compensation, or social security. These documents must support the petitioner’s claims that they are unable to work and earn an income.
In some instances, a payee may be able to petition the court to increase the amount of alimony they receive from their ex if they become disabled. A judge will order an upwards modification of support if the payee is unable to provide for themselves or children due to a loss of regular income. This can also be temporary or permanent.
While there is no such thing as lifetime alimony in New York State, grey divorce clients will often end up paying their ex-spouse maintenance after they reach retirement. In order to petition the court for a downwards modification of support, or to cease payment all together, the payee must prove that they are retiring in good faith. Typically, this means the person is 65 years of age of older. Other reasons why a judge may modify alimony include:
- The age of the parties;
- How the retirement or pension assets were distributed in the divorce settlement;
- Whether or not the payee’s retirement is reasonable; or
- Whether or not the request to modify support due to retirement is an attempt to reduce payment simply because they no longer want to abide by the agreement.
New York considers pensions and other retirement savings plans to be marital property, since contributions are made during the marriage. All marital assets are subject to equitable distribution, therefore, retirement accounts must be evaluated during divorce. This process is called a Qualified Domestic Relations Order (QDRO), and is court ordered.
Petitioning the court for a modification of an order is a complicated and technical process, and should not be attempted with the help of a qualified divorce attorney. The family law firm of Brian D. Perskin & Associates P.C. specializes in complex post-judgment motion practice, and has been for over 20 years. For more information on modifying a support order, contact Brian and his team to schedule a free consultation.