By: Audrey Henderson
There are two ways a court may change or modify a spousal support award: (1) where both parties agree to modify the amount, or (2) where a material change in circumstances or change in event happens that would involve a change in the spousal support amount.
Agreement to Modify by the Parties
The most efficient way to change a spousal support order is by agreement of the parties because a court cannot unilaterally change an agreed upon spousal support award according to the terms or stipulation or contract signed by both of the parties. See Blackburn v. Michael, 30 Va. App. 95, 100 (Va. Ct. App. 1999).
Material Change in Circumstances or Change in Event
However, if the parties cannot agree to a modification themselves, then upon the petition of either party, a “court may increase, decrease, or terminate the amount or duration” of any spousal support using the factors mentioned in my blog post How Do I Calculate the Amount of Spousal Support I owe or that is Owed to Me? Va. Code Ann. § 20-109(B). See also Thomas v. Thomas, 217 Va. 502, 505 (1976) (“where changed circumstances are demonstrated,” either spouse can petition for an increase, decrease, or termination of spousal support). The court may make these changes if (1) there has been a material change in the circumstances for either of the parties, or (2) if an event the court anticipated during the duration of the award did not in fact happen. Id.
The party moving for a modification of spousal support has additional burdens and thresholds to overcome. He or she must prove “both a material change in circumstances and that this change warrants a modification of support. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605 (Va. Ct. App. 1989). The material change in a spouse’s circumstance must occur after the court’s award decree. Hiner v. Hadeed, 15 Va. App. 575, 577 (Va. Ct. App. 1993). The change in circumstances that allow a court to modify the spousal support must be financial and economic ones. Hollowell v. Hollowell, 6 Va. App. 417, 419 (Va. Ct. App. 1988).
For example, the court in Reece v. Reece granted the husband’s request for a decrease in spousal support because he “proved that his financial circumstances had materially changed . . . after he involuntarily lost his job” as opposed to voluntarily leaving his job. Reece v. Reece, 22 Va. App. 368, 373 (Va. Ct. App. 1996). Additionally, there was no evidence that the husband refused a comparable employment opportunity that would “deliberately minimized his income for the purpose of reducing his ability to support [his] wife.” Id. at 374-75.
But, simply losing your job is not necessarily enough to secure a reduction in spousal support. For example, in Smull, the husband was working full time at a corporation when the corporation lost a contract. Smull v. Smull, 45 Va. Cir. 336, 336 (Va. Cir. Ct. 1998). The husband was involuntarily placed on part time duty with the corporation. Id. He then decided to begin a new career that paid much lower than his corporate job. Id. Subsequently, the court denied his request to decrease his spousal support payments reasoning that his inability to pay was due to his own negligence of not securing a comparable job that had the same earning capacity as his corporation job. Id. at 337.
Circumstances that May Terminate Spousal Support
Spousal support may not last forever. In fact, there are three common instances that usually end spousal support.
1. Habitual Cohabitation
If a spouse whom is receiving spousal support and has been habitually cohabitating with another person in a relationship that is analogous to a marriage for one year or more, the other spouse can petition the spousal support. Va. Code Ann. § 20-109(A). The court must terminate the spousal support in this situation unless the divorced parties had a stipulation or contract that said otherwise or unless the spouse receiving the spousal support proves by a preponderance of the evidence that the termination of the support would be unconscionable. § 20-109(A)(i)-(ii).
Va. Code Ann. § 20-110 states that if the spouse receiving the spousal support remarries, then the spousal support must terminate the date of the new marriage. The spouse receiving the support has an affirmative duty to notify the other spouse paying the support to cease payments. Id.
Unless the parties had some sort of stipulation or contract that stated otherwise, spousal support must terminate upon the death of either of the parties. Va. Code Ann. § 20-109(D).