We recently posted about a modification in child support obligations. In addition to child support, a person may also seek to modify their maintenance obligations or the amount of maintenance they are receiving from their ex-spouse.

What is Maintenance?

Perhaps the most important question, and a very frequent question is, what is maintenance? In order to fully understand this term, we must look historically at a word most people are familiar with, and that is “alimony.” Divorce actions which were commenced prior to July 19, 1980 dealt with alimony. Alimony was a sum paid by one spouse (or ex-spouse) to the other, or to a third party for real and personal property, services furnished to either spouse, or for rent, mortgage payments, insurance, and taxes, amongst others.  In 1980, the New York State Legislature amended the law providing for alimony, and in fact changed the name of alimony to “maintenance” or “spousal support.” Maintenance is defined as “payments provided for in a valid agreement between the parties or awarded by the court . . . to be paid at fixed intervals for a definite or indefinite period of time . . .”[i] The statute also provides for a way to calculate a person’s maintenance obligation based upon the respective incomes of the parties.

While this post does not directly deal with calculating an initial maintenance obligation, this background information is vital in understanding how to seek a modification of maintenance.

What is a Modification of Maintenance?

While it may seem obvious, it is worth noting that a person seeking a modification of maintenance occurs when either the payor (the person paying the maintenance) or the payee (the person receiving the maintenance) requests that a court either increase or decrease the amount of money being paid as and for maintenance.

Are You Entitled to a Modification of Maintenance?

Unfortunately, obtaining a modification of maintenance obligations is not an easy task. A court may modify a maintenance award, in the absence of a valid agreement which is incorporated, but not merged, into a court order or judgment, upon the showing of either the payee’s inability to be self-supporting or upon a showing of a substantial change in circumstances, including financial hardship, or upon actual full or partial retirement of the payor if the retirement results in a substantial change in the financial circumstances. What constitutes a substantial change in circumstances is determined on a case-by-case basis.

When a payor is seeking a downward modification of maintenance, a court will compare the payor’s financial circumstances at the time of the motion for a downward modification and the payor’s financial circumstances at the time of the divorce to determine whether there has been a substantial change in circumstances. For example, in a 2013 case, a court denied a defendant’s motion for a downward modification of his maintenance obligations despite the fact that the defendant became disabled and retired.  The court’s reasoning in its denial was that the defendant received a substantial lump sum pension payment that rendered him financially capable of meeting his maintenance obligation to the plaintiff until she reaches 65.[ii]

Similarly, courts are also unwilling to find a substantial change in circumstance when a person losses employment or has a decrease in income when such loss or decrease is found to be voluntary.

What If You Have a Settlement Agreement That Was Incorporated Into a Judgment of Divorce?

The standard for a modification of a maintenance obligation is even higher than the standard set forth above. If individuals entered into an agreement after July 19, 1980 which remains valid and was incorporated into a subsequent order or judgment of a court, a court may not modify the terms of said agreement pertaining to maintenance without a showing of extreme hardship on either party. In other words, the party seeking a modification of the maintenance provisions of a divorce decree which incorporates the terms of a settlement agreement, must demonstrate that the continued enforcement of the settlement agreement as is would create extreme hardship. Establishing extreme hardship is not easy. In fact, courts have even held that while loss of employment may be a substantial change, it is not enough to establish an extreme hardship.

Showing extreme hardship is a difficult task; however, it can be done. In a 2005 case out of the Fourth Department, Marrano v. Marrano[iii], the court found that the defendant met his burden of establishing that his continued payment of $40,000 per year to plaintiff in maintenance would result in extreme hardship warranting a reduction in his maintenance obligation. In this case, the defendant earned $174,000 from his real estate business in 1994 but by 1999, his earnings decreased to approximately $18,000. Additionally, the gross income from his business was $1,810,000 in 1995, but decreased to $295,000 in 1999. Moreover, the plaintiff did not refute the evidence presented by defendant that his company, which was valued at $150,000, would produce a yearly income for defendant of $56,557 for the next three (3) years and that his yearly living expenses would be approximately $50,400. At the time of the hearing, the defendant’s only other assets consisted of $300 in a bank account and $15,000 in equity in his home. Based on the above, the court found that payment of $40,000 per year in maintenance would cause an extreme hardship on defendant.

If you believe you may be entitled to modification of maintenance or have questions about support obligations, you should seek advice from an experienced attorney. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you.  Readers of this article should seek specific legal advice from legal counsel of their choice.   Samantha Guido may be reached at 516-393-8250 or sguido@jaspanllp.com.

[i] DRL § 236(B)(1)(a).

[ii] Taylor v. Taylor, 107 A.D.3d 785 (2d Dep’t 2013).

[iii] 23 A.D.3d 1104 (4th Dep’t 2005).