In the past, if a person was terminated from his or her job and wanted to modify alimony due to a change in circumstances, our courts would many times not even consider such an application until six months to a year had passed. During that time, the unemployed person would have to continue paying alimony at the ordered rate or arrears would start to accrue at an alarming rate. Also during that time, the unemployed person would have to document his or her efforts to obtain new employment and provide proof of such efforts to the court when the court felt enough time had passed to file a modification application. This amount of time was very subjective and different judges would have different thresholds, since there was no statute detailing what was an appropriate length of time before someone could file such an application.
The new alimony law states that in the event of the loss of employment, the court may consider the application for a modification of alimony if the party has been unemployed for 90 days or has been unable to obtain employment at the same level of compensation by the end of that 90 day period. There is a distinction under this law as to whether the person is employed by a third party or self-employed.
If employed by a third party, the involuntary unemployed party seeking modification of alimony can expect the court to consider the following factors:
- “The reasons for any loss of income;
- Under the circumstances where there has been a loss of employment, the obligor’s documented efforts to obtain replacement employment or to pursue an alternative occupation;
- Under the circumstances where there has been a loss of employment, whether the obligor is making a good faith effort to find remunerative employment at any level and in any field;
- The income of the obligee; the obligee’s circumstances; and the obligee’s reasonable efforts to obtain employment in view of those circumstances and existing opportunities;
- The impact of the parties’ health on their ability to obtain employment;
- Any severance compensation or award made in connection with any loss of employment;
- Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;
- The reasons for any change in either party’s financial circumstances since the date of the order from which modification is sought, including but not limited to, assessment of the extent of which either party’s financial circumstances at the time of the application are attributable to enhanced earnings or financial benefits received from any source since the date of the order.
- Whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought, and the terms of any such adjustment, pending continuing employment investigations by the unemployed spouse or partner; and
- Any other factor the court deems relevant to fairly and equitably decide the application.”
If the person is self-employed and seeks modification of alimony due to a loss of business (involuntary reduction of income), then that party’s certification to the court must include an analysis that sets forth the economic and non-economic benefits the party had received from the business prior to the reduction of income and what the differences are currently.
If the court determines that a temporary reduction in alimony is warranted, it may temporarily suspend or reduce alimony, direct that alimony be paid from assets if available, compel a periodic review, or enter any other order it deems fair and equitable. The court may also grant any relief retroactive to the date of the loss of employment or reduction in income.