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Modification of Order or Decree

Quick Facts
  • Modification requires substantial change in circumstances.
  • Property division is final and not modifiable.
  • Maintenance obligation does not always cease on death.
  • Court hearing not required.

Spousal Maintenance

After issuing an order for spousal maintenance, whether temporary or permanent, or for the appointment of trustees to receive property awarded as maintenance, the court has authority to modify the amount and terms of payment of maintenance in the order.

The court is also able to modify the apportionment and payment of the principal and income of the property that is held in trust.

A parent or the public authority also may bring a motion for contempt of court if the obligor is in arrears in spousal maintenance payments.

Modification

The terms of an order for spousal maintenance may be modified after the spouse proves one or more of the following, any of which operate to make the terms of the decree or order unreasonable and unfair:

  1. substantially increased or decreased gross income of an obligor or obligee;
  2. substantially increased or decreased need of an obligor or obligee;
  3. receipt of assistance under the AFDC;
  4. a change in the cost of living for either spouse;
  5. extraordinary medical expenses;
  6. a change in the availability of appropriate health care coverage or a substantial increase or decrease in health care coverage costs.

The court will not consider the financial circumstances of either spouse's new spouse and will not consider compensation received by a spouse for employment in excess of a 40-hour work week if all of the following are true:

  1. the excess employment began after entry of the existing maintenance order;
  2. the excess employment is voluntary and not a condition of employment;
  3. the excess employment is in the nature of additional, part-time employment, or overtime employment where compensation is by the hour or fraction of an hour;
  4. the spouse's compensation structure has not been changed for the purpose of affecting a maintenance obligation.

Except for an award of occupancy of the homestead, all divisions of real property and personal property are final. Property division can be revoked or modified only when the court finds conditions that justify reopening a judgment. The court can impose a lien or charge on the divided property at any time while the property, or subsequently acquired property, is owned by one or both of the spouses for payment of maintenance. The court may sequester the property instead.

The court is not required to hold an evidentiary hearing on a motion for modification of spousal maintenance.

Spousal Maintenance on Death or Remarriage

When either spouse dies or remarries, the surviving spouse is no longer obligated to pay future maintenance, unless the divorce decree states otherwise. The death of the person receiving maintenance does not necessarily relieve the obligation to pay past due maintenance.