Can Spousal Support be Modified or Terminated?

Posted on June 28, 2012 by

Modification of spousal support and termination of spousal support are treated differently by the courts, so we will discuss modification of spousal support first.

The answer to the question depends on how the spousal support was established.  If a court established the spousal support award, the amount of spousal support can be modified (increased or decreased) if evidence establishes a material change in circumstances since the spousal support award and that modification is appropriate under all the circumstances.

If the spousal support was established through an agreement by the parties, the agreement controls whether the spousal support can be modified or not.  If your agreement does not address modification, i.e, if the agreement is “silent” on whether the amount or duration of spousal support can be modified, then the spousal support cannot be modified.  If the agreement addresses modification, a court can only modify the spousal support as set forth in the agreement.  For example, if the agreement says that spousal support can be increased, then the court cannot reduce the amount of spousal support.   If the agreement provides that support can be modified, a court can modify the spousal support; however, the court cannot modify spousal support based on changes that were in the contemplation of the parties at the time they entered into the agreement.  By agreement, the parties can also limit the amount by which the spousal support can be modified by the court.

By statute, spousal support is terminated when either party dies, when the party receiving spousal support remarries or when a court finds by clear and convincing evidence that the party receiving spousal support has cohabitated with another person in a situation analogous to marriage for more than one year.   Termination is different from modification when it comes to spousal support established by agreement.   As set forth above, if an agreement is silent on whether spousal support can be modified, then it cannot.  The opposite is true with respect to termination.  If the agreement does not expressly state that the termination events in the statute – death, remarriage or cohabitation – do not apply to the agreed spousal support obligation, then the termination events do apply.   The Virginia Court of Appeals has held that either the specific terminating event or events must be stated in the agreement or the statutory provision itself must be referenced in the agreement. If not, then spousal support will be terminated upon the happening of one of the terminating events.  This is true even if the parties agreement regarding spousal support says that the spousal support will not terminate for any reason.   Such language is insufficient to prevent the application of the statutory events that serve to terminate spousal support.

 

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Can Spousal Support be Modified or Terminated?

Modification of spousal support and termination of spousal support are treated differently by the courts, so we will discuss modification of spousal support first.

The answer to the question depends on how the spousal support was established.  If a court established the spousal support award, the amount of spousal support can be modified (increased or decreased) if evidence establishes a material change in circumstances since the spousal support award and that modification is appropriate under all the circumstances.

If the spousal support was established through an agreement by the parties, the agreement controls whether the spousal support can be modified or not.  If your agreement does not address modification, i.e, if the agreement is “silent” on whether the amount or duration of spousal support can be modified, then the spousal support cannot be modified.  If the agreement addresses modification, a court can only modify the spousal support as set forth in the agreement.  For example, if the agreement says that spousal support can be increased, then the court cannot reduce the amount of spousal support.   If the agreement provides that support can be modified, a court can modify the spousal support; however, the court cannot modify spousal support based on changes that were in the contemplation of the parties at the time they entered into the agreement.  By agreement, the parties can also limit the amount by which the spousal support can be modified by the court.

By statute, spousal support is terminated when either party dies, when the party receiving spousal support remarries or when a court finds by clear and convincing evidence that the party receiving spousal support has cohabitated with another person in a situation analogous to marriage for more than one year.   Termination is different from modification when it comes to spousal support established by agreement.   As set forth above, if an agreement is silent on whether spousal support can be modified, then it cannot.  The opposite is true with respect to termination.  If the agreement does not expressly state that the termination events in the statute – death, remarriage or cohabitation – do not apply to the agreed spousal support obligation, then the termination events do apply.   The Virginia Court of Appeals has held that either the specific terminating event or events must be stated in the agreement or the statutory provision itself must be referenced in the agreement. If not, then spousal support will be terminated upon the happening of one of the terminating events.  This is true even if the parties agreement regarding spousal support says that the spousal support will not terminate for any reason.   Such language is insufficient to prevent the application of the statutory events that serve to terminate spousal support.