Life involves a lot of ups and downs, and our finances are certainly not immune from these hills and valleys. When your divorce was finalized, the spousal support payment–or alimony–that you were receiving might have seemed sufficient. Now, if it no longer does, you’re probably curious about your options.
The support payments you receive are part of a binding legal agreement that was registered in the court system. Fortunately, North Carolina law does allow for at least the possibility of increased alimony payments.
You can ask for more alimony after a divorce in North Carolina by requesting a modification of the original court order that set the payment schedule. Whether a court will grant your request hinges on whether a judge finds that a “substantial change in circumstances” has taken place to justify a change. You will bear the burden of proof to demonstrate that the changes in circumstance are indeed substantial.
Child Support Disclaimer
If your ex is making alimony payments, they may also be making child support payments. While the distinction may not seem important on a day-to-day basis, it is important in terms of legal doctrine. Child support and alimony are two different things.
So, let’s say the reason you’re wondering about increased payments is that your child’s circumstances have changed. Perhaps there’s a medical problem that requires more out-of-pocket expenses. In this case, you would be seeking an increase in child support payments. This can also be the subject of a court order modification, but it is not the focus of our discussion here.
Defining a Substantial Change in Circumstances
The most basic element of a substantial change in circumstances is for your income to have gone down. Perhaps you were downsized out of a job or maybe your company had to implement across-the-board salary reductions.
Another situation is if your company reduced or eliminated the share they were paying towards your health insurance. In that scenario, you’re covering what was previously their share, with a lot less available for everything else.
A related possibility is the loss of financial assets. Let’s say that in the divorce settlement you accepted a lower alimony payment in exchange for a greater share of the stock portfolio you and your spouse shared. Then the market went into a downturn and the stock you were counting on for retirement lost value. This, in turn, requires you to devote a greater portion of your salary into a 401(k). All of which leaves you with a lot less money to live day-to-day.
An increase in your justified expenses can also serve as the basis for requesting a boost in the alimony payment. Remember though, a court will want the increase to be substantial, and judges will tend to place a high bar on what they will consider substantial.
Was the Change Foreseeable?
Let’s say the car you paid off finally breaks down and you have to buy a new one. You buy a modest car that’s appropriate to your needs, but still are faced with a monthly car payment of several hundred dollars. Is that substantial?
It’s a noteworthy burden on your monthly budget, as it would be for any of us. But it’s also unlikely a judge will see it as meeting the test of a substantial change in circumstances.
There are exceptions–if the car was a hotly disputed part of the settlement and you had to give up significant assets elsewhere to get it, then there’s a whole new set of issues for the judge to consider. But generally speaking, circumstantial changes like this are considered reasonably predictable and normal–albeit aggravating.
But let’s say that the increase in expenses came due to damage to your home caused by a tornado. Now your case is stronger, particularly if the house was a significant factor in the original settlement.
The principle of foreseeability is involved here. It might not be possible to foresee exactly when you’ll need a new car. But it’s certainly foreseeable to know that day is coming, because it does for everyone who operates a motor vehicle. On the flip side, while tornado damage is far from uncommon, it’s certainly not foreseeable that you will be the one literally caught in the storm.
Foreseeability will also be a factor if the issue is retirement. Perhaps you’ve reached the age of 62 or 65 and have decided that it’s time to hang it up. This circumstance is about as foreseeable as it gets. It would take some very unusual mitigating factors for a judge to consider this as a reason to modify a support order.
Where Was the Change Initiated?
The scenarios we’ve considered so far were circumstances outside of your control–job loss, pay cuts, car breakdown, and home damage. What if the change in circumstance happened because of something you had control over?
A prime example would be a job change. Perhaps you work as a computer programmer and at the time of the divorce, were in a reasonably stable job. Then, let’s say you decided to go into business for yourself. This is a change that can be a great move for the long haul but is almost certain to result in lower short-term income.
It’s very unlikely that a judge will consider this change in circumstances–while substantial–to merit an increase in an alimony payment. In a way, it would effectively require your ex to invest in your business without getting the return that other investors are getting.
Even more to the point, it was a change that you chose to initiate. The same logic would apply if you switched jobs to go work for a non-profit organization you believe in. It might be a great cause and worth the lower salary they have to offer, but it’s not the role of your ex to help cover the difference.
Following the logic behind these examples, we’re sure it won’t surprise you to learn that an ex will not be required to pay more in alimony if unnecessary debt was rung up on things like luxury items or vacations.
What if My Ex’s Circumstances Have Changed?
Maybe your circumstances are basically the same, but your ex just got a promotion and a hefty raise. Shouldn’t they be sharing the wealth with you, especially given that their salary at the time of the divorce probably played at least some role in establishing your current alimony schedule?
The answer remains: it probably won’t matter. The hard reality is that changes in salary are far more likely to work against you than for you. That is, if you, the receiver,get the big raise, they can use the changed circumstances to petition for a lower alimony payment. It’s more probable that they would win their case for a lower payment than you would win yours for a higher payment if they started making more money.
Furthermore, it’s more likely they can win a case for reduced alimony if they start making a lower salary.
Why the seeming unfairness? The answer starts with the purpose of alimony. The objective is to ensure you can live in a fashion that’s at least reasonably comparable to what you enjoyed during the marriage. If your ex earns a promotion after the divorce, that is immaterial to the standard of living you had together.
One caveat should be pointed out–perhaps you could reasonably guess that your ex’s career was poised to take off. Let’s say you were there when they worked at lower paying jobs to prepare themselves or went to night school to burnish their knowledge and credentials. It seems fair that since you shared in the sacrifice, you should also share in the rewards, right?
To some respect, that’s right. If you can prove this point, it’s likely something that can be negotiated in the original settlement. Rather than receiving a flat amount each month in alimony, you might negotiate for a percentage of your ex’s salary, as that type of adjustment won’t require a modification order and it’s unlikely a judge would revisit it after the fact. But if you have a good divorce attorney who’s helping you see the big picture, this is the kind of alimony agreement that can be negotiated.
Okay, you might think, “but why do I get penalized if they lose their job or get hit with a pay cut?” First off, it’s not guaranteed that your ex’s negative change in circumstances will automatically mean less for you.
Factors like the ones discussed above–did they leave their job or take reduced pay voluntarily–will come under consideration. Courts will also expect to see that every effort was made to meet the obligations of the settlement agreement–starting with your children and then to you.
If each of these tactics fail, it might be time to consider the adage about not being able to squeeze blood from a turnip. Put plainly, your spouse can’t pay what they don't have.
The Power of the Original Settlement
The underlying premise with any change in circumstances is the need for a strong settlement the first time. A good lawyer can fight to make sure your original alimony payment is fair. A divorce attorney that does their job well makes it less likely you’ll even need a modification order, and more likely that you'll succeed if circumstances truly change in a substantial way.
Rech Law, P.C. takes pride in employing lawyers and legal staff who will fight for your interests, will work hard to see the big picture, and will advocate for you in a North Carolina family court. Call us today at (704) 659-0007 or contact us online to set up your initial meeting with our team.