Economic woes from COVID-19 may support alimony modification in Arizona
Modification of spousal support is available in certain circumstances under state law.
The coronavirus has hit our state hard, both medically and financially. Far too many Arizonans have lost jobs or had their wages reduced, struggled to keep their businesses open or suffered business losses, been unable to work because of illness or lost loved ones in their households. For a divorced person who either gets alimony or pays it, any of these scenarios could impact financial stability in a way that either creates a need to receive higher payments or makes it difficult to pay at the level that the payor could afford at the time of divorce.
How is spousal support modified in Arizona?
If the parties at the time of their divorce reached a marital settlement agreement in which they agreed that the court may not modify alimony in the future, that provision would normally have been incorporated into the divorce decree. If this is the case, modification will not now be available to either party.
If spousal support or spousal maintenance (other terms for alimony) is modifiable, a party may file a petition with the court to either modify or terminate the alimony award. The ex-spouse who files the petition has the burden of proving that “changed circumstances that are substantial and continuing” support the requested changes to alimony.
What are substantial, continuing changed circumstances?
Of course, whether a substantial change in circumstances has occurred supporting a modification will vary with each petition. However, Arizona courts have provided some guidance. For example, if a party is basing a change request on an income fluctuation as the substantial change in circumstances, the income change must be current, not an anticipated future change, Arizona courts have said.
Or, in contrast to controlling laws in some other states, Arizona courts have held that the cohabitation of an ex-spouse with a roommate or paramour is not a sufficient change in circumstances in and of itself to support alimony modification. The petitioner still must prove that there have been substantial changes to the other ex-spouse’s financial condition like a decrease in income, an increase in expenses or an enhancement of earning capacity.
Arizona court opinions have also analyzed many other types of changes in circumstances to determine whether they are sufficiently substantial and continuing to support alimony modifications.
Timing of an alimony award change
Normally a modified award would take effect the first day of the month after the petitioner gave the other party notice of the petition, unless the court has “good cause” for a different date. – the court cannot order a modification to be retroactive to any date before the filing date of the petition. For “good cause,” the judge can set a different starting date for the modified payments or termination in the future, but a retroactive date may not be set before the petition filing date.
It seems likely that the court would consider a difficult financial hit to a party because of circumstances related to the coronavirus to be a substantial, continuing change in circumstances that could support a change in an alimony award, but every case is unique.