Substantial Change in Circumstances
Typically, for a court to modify an alimony order, the petitioning party must show a substantial change in circumstances. Generally, the change must be unanticipated, involuntary and permanent. For example, if the paying spouse loses his job, the court might consider it a substantial change as long as his own behavior did not result in his termination. If the paying spouse was aware that his behavior was against company policy and could result in termination, the court might consider the termination either anticipated, or voluntary, due to its nature. Retirement is a loss of employment, but because it is anticipated, courts might not consider it a substantial change justifying downward modification. Conversely, an unforeseen disability of the receiving spouse typically constitutes a substantial change for upward modification.
Courts often accept cohabitation of the receiving spouse as a substantial change in circumstances justifying downward modification of alimony. Cohabitation means the receiving spouse is living in a conjugal relationship with someone who contributes to her financial support. In such a situation, courts may consider that the cohabiting party's decreased need justifies the modification.
There are some types of alimony, such as bridge-the-gap alimony, which courts typically will not modify. A court awards bridge-the-gap alimony only for a specific length of time to help a spouse during the financial transition from married to unmarried. In Florida, for example, modification of this type of alimony is prohibited by statute. Further, courts typically do not interfere with marital settlement agreements that waive the right to alimony modification. When agreements provide for modification only in specific circumstances, courts usually will not consider a modification under any other circumstances, unless they deem the agreement as unfair whereby one spouse grossly took advantage of the other. In these cases, the party who is seeking the modification has the burden of proof to show why the agreement was unfair.
Petition for Modification
A petition for modification typically includes the original alimony award, describes the change that justifies modification, and asks the court to modify the initial award of alimony. A financial affidavit that details the filing spouse's financial situation usually accompanies the petition. Once the party files the petition with the family law court, she then serves the petition and financial affidavit on her spouse. The receiving spouse then has a certain number of days to file a response, after which the court sets a hearing date.
Hearing and Evidence
A hearing on the petition to modify, or possibly even a trial, is typically required. At the hearing or trial, the spouse requesting modification must prove the substantial change in circumstances -- and that it is unanticipated, involuntary and permanent. Proof of increased need might include copies of bills, bank account statements and receipts. Proof of the other spouse's increased ability to pay might require a subpoena for these same documents, as well as pay stubs and employment records.