Does Alimony Cease When a Spouse Becomes Incapacitated?

by Rob Jennings J.D.
The incapacitation of either former spouse can affect an ongoing alimony obligation.

The incapacitation of either former spouse can affect an ongoing alimony obligation.

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Alimony, or spousal support, is financial support to a former spouse upon divorce, and sometimes during the divorce process. Courts sometimes order that alimony be paid for life, but unforeseen circumstances, such as incapacitation of the paying spouse, can alter a former spouse's ability to continue making the court-ordered payments.

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Grounds for Modification

Most states permit the modification or termination of the alimony provisions of a divorce decree upon the occurrence of a substantial and material change of circumstances that affects your ability to make payments. As the years go on, people lose jobs, get forced into lower-paying or part-time employment, or fall victim to illnesses that render them incapable of working. Becoming mentally or physically unable to earn an income constitutes a substantial change of circumstances that can lead a court to lower or even terminate your alimony obligation.

Termination

Termination and modification aren't automatic. Although substantially changed circumstances may have occurred, you or your attorney must file a motion requesting the court's permission to stop paying. The paying spouse bears the burden of proving the existence of changed circumstances and their effect on his ability to continue making payments. Typically, you will have to demonstrate that the changed circumstances came about through no fault of your own, such as illness or incapacitation. Voluntary underemployment or unemployment is rarely cause for termination or modification.

Non-Modifiable Obligations

Not all alimony obligations can be reduced or terminated upon a showing of changed circumstances. If the parties entered into a marital settlement agreement for permanent alimony or one that contains no modification provisions, prohibitions against modifying contracts without the consent of both parties could prevent reduction or termination. Depending upon the state, physical or mental incapacitation may not serve to terminate alimony if the paying spouse has substantial separate assets.

Safeguards

Although death or disability can destroy what might be the recipient spouse's sole source of income, she can take some early measures to mitigate this risk. In most jurisdictions, she can insure the paying spouse's life or purchase disability insurance to safeguard her financial security. She can also choose to accept a reduced alimony obligation during the divorce case in exchange for a larger share of marital property than the court would otherwise order. Getting as much up-front value as possible limits her exposure to the financial devastation that may accompany the death or disability of the paying spouse.