By: Sarah E. Murray
Fairfield County Family Courts have a significant number of post-judgment cases, many of them involving the modification of alimony after a divorce. Modification of alimony post-judgment is a common issue that arises for people living in towns like Greenwich and Fairfield, as changes in income or other circumstances lead both alimony payors and alimony recipients to seek relief from the Court with respect to alimony payments.
Some divorce agreements or Court decisions state that alimony is non-modifiable by one or both parties as to term, i.e. duration, and/or amount. If a divorce agreement or Court decision states that alimony is non-modifiable as to amount or duration, or both, it means that a party cannot seek to change the amount of alimony, nor to extend or reduce the alimony term, regardless of whether circumstances have changed after the divorce. There may be particular reasons why a person would agree to, or request that a Court Order, non-modifiable alimony. Generally, it is less common for a final divorce judgment to state that alimony is non-modifiable.
In most cases, the final divorce judgment either explicitly or implicitly permits the modification of alimony. Connecticut General Statutes Section 46b-86(a) allows for the modification of alimony “[u]nless and to the extent that the decree precludes modification.” In other words, as long as the final divorce judgment does not state that alimony is non-modifiable, a party has a right to modify alimony. Alimony is also
modifiable based on the cohabitation of the alimony recipient.
Of course, simply because a final judgment allows for modification of alimony post-judgment does not mean that a person’s claim that alimony should be modified will be successful. In order to obtain a Court Order modifying alimony under General Statutes Section 46b-86(a), the party seeking the modification must prove that there has been a substantial change in circumstances of either party. Under Connecticut case law, in determining whether there has been a substantial change in circumstances, a Court will
compare the circumstances at the time of the last Court Order of alimony with circumstances at the time that a party seeks a modification of that Order. Relatively minor fluctuations in income alone will not be enough to overcome the “substantial change in circumstances” threshold.
Furthermore, our office was involved in a recent Connecticut Supreme Court case, Dan v. Dan, 315 Conn. 1 (2014), which states that an increase in the income of the alimony payor, standing on its own, is not sufficient justification to modify an alimony award upward. Prior to this case, it was common for an alimony recipient to seek modification of alimony if his or her ex-spouse had an increase in income. Now, such a motion is likely to fail under Dan. Dan, however, does not prevent an alimony recipient from
requesting a modification of alimony if other circumstances have changed such that the original purpose of the alimony award is no longer met.
It is critical to allege a proper basis for modification, as the Court will confine its analysis to the substantial change in circumstances alleged in the moving party’s motion. Significant changes in health and job loss are examples of possible substantial changes in circumstances. Each case is different. In order to prove a substantial change in circumstances that would justify a change in alimony, a party needs to engage in
strategic planning, preferably with an attorney, prior to filing a motion for modification. If a party is successful in proving to a Court that a substantial change in circumstances has occurred, the Court then looks at the statutory factors set forth in General Statutes Section 46b-82 in order to determine what new alimony Orders, if any, should enter. The Court can determine that despite a substantial change in circumstances, the prior
If a party is successful in proving to a Court that a substantial change in circumstances has occurred, the Court then looks at the statutory factors set forth in General Statutes Section 46b-82 in order to determine what new alimony Orders, if any, should enter. The Court can determine that despite a substantial change in circumstances, the prior alimony award is still proper. Or, the Court can decide to change the alimony amount or term. If the Court does change the alimony amount or term, the Court has the authority under the statute to make the change retroactive to the date that the motion for modification was served on the other party. The Court does not have to make its Orders retroactive but has the discretion to do so.
At Broder & Orland, LLC, our attorneys have significant experience handling cases involving the modification of alimony post-judgment. In fact, we have been involved in some of the seminal cases in Connecticut on alimony modification issues and can consult with clients to shed light on whether a potential alimony modification case is viable.