In general, a spouse must be able to evidence a “material change in circumstances” of one or both spouses since the existing support order or divorce judgment entered in order to request a modification of the present support order or judgment. Modification requests are different depending on whether the separation agreement that designated support issues was incorporated and merged into the final judgment of divorce or whether the separation agreement was incorporated into the final divorce judgment but not merged into that judgment.
Incorporated and Merged into Final Judgment
The State probate and family court judge will have broad discretion in deciding whether or not the claimed “material change in circumstances” is indeed material enough to warrant a modification of a final judgment. The term, “material change in circumstances” has not been limited by a specific statutory or caselaw generated definition in most States and as a result modification requests based on a claim of a material change in circumstances are considered on a case by case basis. Many lawyers would conclude that a judgment modification is all but impossible in this circumstance.
Incorporated but Not Merged into Final Judgment
The standard for a modification is going to be much harder to meet if the separation agreement incorporated into the final judgment of divorce survived as an independent contract. If that was the situation then the spouse requesting a modification would need to document “countervailing equities” in order to get a modification of the final judgment. Again, there is no exact meaning limiting the scope of “countervailing equities” but the situation claimed would need to be pretty extreme such at the spouse being forced to go on public welfare to make support payments or that the other spouse was not complying with their responsibilities pursuant to the judgment.
Modification of Spousal Support
Requesting a modification to an alimony award starts by evidencing the material change in circumstances concerning “the recipient spouse’s need for support” or the “supporting spouse’s ability to pay” for the support. Courts tend to calculate a spouse’s ability to pay based on his or her earnings or earning potential. A substantial and permanent decrease or increase in the income of the spouse receiving the alimony or paying the alimony could be sufficient grounds for a modification of a judgment.
Getting Legal Help
If you need a modification of spousal support orders included in your final judgment of divorce then it would be important to access the assistance of a divorce attorney to aid in making the modification request to the court.