Modification of Maintenance

By J. Douglas Barics
New York Divorce Lawyer

An order of support is always subject to being modified. If you are paying or receiving spousal maintenance, the amount of support may be adjusted upwards or downwards or even terminated. If any of the following circumstances apply to you, a modification may be warranted.

The spouse receiving the support is unable to be self supporting
A substantial change of circumstances
Financial hardship
Full or partial retirement of the spouse paying the support provided the retirement is a substantial change of circumstances

The first step in reviewing any request to modify maintenance is to determine whether the maintenance was made after a hearing or whether there is an agreement. If an agreement exists, the date of the agreement is critical, as only financial hardship will apply to older agreements.

Maintenance set by Court Order after a Trial

DRL 236 B (9)(b)(1) authorizes the court to end or modify any support order issued after a trial based on a showing of the following:

the payee 's inability to be self-supporting
a showing of a substantial change in circumstance
a showing of financial hardship
upon actual full or partial retirement of the payor if the retirement results in a substantial change in financial circumstances.

Maintenance set by an Agreement or Stipulation

Under DRL 236 B(9)(b)(1), when maintenance is set by an agreement, no modification shall be made without a showing of extreme hardship on either party. An important exception to this rule is the agreement itself, as the parties may agree to a different standard for modification.

Marriage of the Payee

DRL 248 provides that maintenance will terminate upon the former spouses remarriage. This is non discretionary and the termination of maintenance is required.

Living with someone else and holding themselves out to be spouses

DRL 248 allows the termination of maintenance at the court's discretion if it is shown that the former spouse is habitually living with someone else and holding themselves out to be their spouse.

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about your legal options in seeking or defending against a modification of spousal maintenance. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.

Text

Bottom Text

For a free phone case consultation or to schedule an office meeting, call 631-864-2600.

Overview

Matrimonial actions are defined by statute; the most common being divorce, annulment, and a declaration of a void marriage. For every matrimonial action all ancillary relief is available.

Divorce

Divorce is the most common matrimonial action. Grounds are no longer the primary focus, the emphasis is resolving the financial matters and custody.

Annulments

An annulment is a matrimonial action seeking to declare a valid marriage void. All ancillary relief is available. All annulment grounds are fault based, and require a higher level of proof to establish.

Void Marriages

Void marriages are those which are void from inception. An action requesting a declaratory judgment is a matrimonial action and all ancillary relief is available.

Matrimonial Appeals

Matrimonial appeals requires a combination of matrimonial law and appellate law. A lack of understanding of either can prove fatal in an appeal.

Equitable Distribution

Equitable distribution authorizes the matrimonial court to award all marital property to either spouse, without regard to title.

Maintenance

Maintenance is the support payments from one spouse to another. Since 2016 the amount is determined by a formula.

Child Support

Parents have an obligation to support their children, and the parent with residential custody will be awarded child support. The amount of support is determined by a formula.

Custody

When parents cannot decide where their children shall live and how to make decisions involving them, the court will decide custody based on the bests interests of the child.

Counsel Fees

Awards of counsel fees to the non monied spouse is available in all matrimonial actions. Awards can be made during the case and at the conclusion.

Expert Fees

Awards of expert fees to the non monied spouse is available in all matrimonial actions.

Exclusive Occupancy

The court is authorized to award exclusive occupancy to one party, giving them exclusive use and possession of a home for a set period of time during or after a matrimonial action.

Pendente Lite Motions

Pendente lite motions used when a spouse in a matrimonial action needs needs immediate court assistance on something that cannot wait until trial or a final settlement.

Same Sex Divorce

Same sex divorces present unique issues such as when the couple got married before it was recognized by law, or when couples used work arounds for their marital property.

Modification of Child Support

Child support may be modified based on a change of income, a change of circumstances, or if three years have passed since the last modification. COLA adjustments to child support orders can also be obtained.

Modification of Maintenance

Maintenance is subject to modification or early termination but the circumstances when these can occur are less common than in the past.

High Net Worth Divorce

High net worth divorces often involve non typical financial holdings that require special care in determining their disposition.

Marital Agreements

Marital agreements are contractual agreements between future, existing, or prior spouses who decide to resolve their own issues instead of letting a court decide for them.

Complex Challenges

Complex challenges in matrimonial actions can range from complex financial issues, inter-state or international issues, or procedural issues which deprived one spouse from their day in court.