Can I modify my spousal maintenance?

As part of a divorce, a Washington court may order one spouse to pay the other a certain amount of money over a certain period of time as maintenance.  This spousal maintenance is intended to help equalize the economic positions of the parties after the divorce.  In setting maintenance, the court considers several factors such as the financial resources of the parties and their standard of living during the marriage, but it essentially comes down to the receiving party’s need and obligor’s ability to pay.

It is understandable that, for a variety of reasons, either the paying party or the receiving party may want the spousal maintenance to be changed sometime after the divorce is complete.  However, a party who wants to modify maintenance has a significant hurdle to cross.

Generally speaking, unless the parties had a separation agreement that provides differently, the party who wants to change or terminate maintenance must show that there has been a substantial change in circumstances since the divorce decree was entered.  “Change of circumstances” means that the financial need of the recipient or the ability for the obligor to pay has changed.  “Substantial” means the change must be significant or weighty.  This change must also be something that was not contemplated when the decree was entered and must be something of a continuing nature and not temporary.

The remarriage of the receiving spouse will normally terminate maintenance without having to prove a substantial change in circumstances.  However, living with a romantic partner will only be grounds for terminating or modifying maintenance if it substantially changes the financial circumstances of the recipient.

Above all else, it is critical to understand that meeting the substantial change of circumstances test only means that the court may modify the maintenance but does not require the court to modify.  A court could find that there has been several substantial changes in circumstance but that in total effect they cancel each other out and do not support a need for modification.  A court might also decline to modify maintenance because in its opinion the original order was too low or high anyway.

Due to the above difficulties in modifying maintenance it is important to receive counsel regarding spousal maintenance before finalizing a divorce.  The issue of maintenance modification may be avoided by careful drafting of an agreed decree.  It can be agreed to make maintenance non-modifiable.  It could also be agreed that maintenance changes under certain circumstances like the performance of investments or businesses.  If the paying spouse has an income that fluctuates it may be in both parties’ interest to set maintenance at a base rate plus a percentage of actual income.  In this way the paying party has relief during financial downturns while the receiving party benefits from upturns and can rely on receiving a minimum payment.