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Can a Spousal Maintenance Award be Modified?

The general answer is yes that it can be, but it is difficult to do. Keeping our model couple in mind, how can Linda or David modify a spousal maintenance award? Let’s assume that Linda is eligible to receive a spousal maintenance award and the Court issues her one in she and David’s final divorce decree. We will discuss the needed steps in modifying the support award below.

Modifying A Support Award Downward (or Stopping It)

Generally, spousal maintenance is only awarded for a few years in Texas, although it can be for up to ten years or even indefinitely. The person seeking to modify the award has the burden of proving why the award amount should be changed. Additionally, the person seeking to modify the support award must prove that there has been a substantial material change in circumstances.

How is a award support modified? An award support can be modified by filing a motion to modify the spousal maintenance award.

What is a “material change in circumstances”? A material change in circumstances is a fact based inquiry. This means that “a material change” will be based on the circumstances of each individual case. In some situations, a material change could mean that the person receiving support gained sustainable employment well before the spousal maintenance award term ceases and becomes able to meet their minimum needs. This is especially likely to occur in longer awards.

In other situations, a material change could be that the person paying the support becomes unemployed through no fault of their own. In any case, if Linda or David wish to modify the the spousal award issued in their divorce, either one of them can file a motion to modify the award in order to do so.

The person seeking to modify the spousal maintenance award needs to file the appropriate Motion, serve the other side and then set a hearing.

Continuation Of Support Award

A spousal maintenance award generally only lasts for a few years. However, in some instances, a spousal award can be adjusted to last longer. In our scenario, let’s say that Linda wishes to receive spousal maintenance for longer than three years. What does she need to do?

The “burden of proof” is on the party seeking to continue the award. What does the term, “burden of proof,” mean? The term “burden of proof” is legal jargon. It indicates the amount of evidence that is needed to prove or disprove a legal theory. In our context, the burden of proof is set to a “based on a preponderance” of the evidence standard. This means that the party seeking to continue the support award past three years must show that it is more likely than not that the support award should continue.

Why would a Court continue a support award? A Court may continue a support award past the usual tenure when the receiving spouse has a disability. What is a disability? A disability is a mental or physical limitation that incapacitates an individual’s way of life. Some examples include but are not limited to: bi-polar disorder, schizophrenia, post traumatic stress disorder, an amputated leg or arm, and paraplegia.

If a Court orders a continuation of a spousal award, the Court may also order a periodic review to determine whether or not a disability still exists. In the alternative the paying spouse may seek periodic Court review to ascertain whether or not the receiving spouse is still disabled and in need of support.

For a real life example, see Hackenjos v. Hackenjos, 204 S.W.3d 906 (Tex. App. 2006) [where an ex-wife was ordered to pay her ex-husband spousal maintenance, his petition to modify maintenance was improperly denied because the order of spousal maintenance in the divorce decree was impliedly based on a finding of disability under Tex. Fam. Code Ann. § 8.054(b), and the trial Court had the authority to extend spousal maintenance.]

The Court will look to the terms of the final divorce decree to decide whether or not the party seeking review of the maintenance award is seeking a modification of the award or seeking to continue the award.

Texas Courts have addressed the continuation of a spousal award issue recently in the Crane v. Crane, 188 S.W.3d 276, 277 (Tex. App. 2006) case. In that case, the wife filed a request for periodic review of spousal maintenance, seeking an indefinite continuation of spousal maintenance.

The Court of Appeals agreed with the wife that because she filed a request for an indefinite continuation of spousal maintenance under Tex. Fam. Code Ann. § 8.054(b) (Supp. 2005), rather than a motion to modify maintenance, the Trial Court should not have placed the burden on her to prove a material and substantial change in circumstances.

The motion for continuation of spousal maintenance placed no special burden of proof on the wife other than to prove that her disability was continuing. In finding that the motion was properly filed under § 8.054(b), the court noted that, on entering the divorce decree, the trial court only had authority to order maintenance for more than three years, as it had, under § 8.054(b), and that in the decision at bar, the trial court expressly noted that the wife could not support herself because of incapacitating physical disability.

Why would a Court continue a support award?

A Court may continue a support award past the usual tenure when the receiving spouse has a disability. A disability is a mental or physical limitation that incapacitates an individual’s way of life. Some examples include but are not limited to bi-polar disorder, schizophrenia, post-traumatic stress disorder, an amputated leg or arm, and paraplegia.

If a Court orders a continuation of a spousal award, the Court may also order a periodic review to determine whether or not a disability still exists. In the alternative, the paying spouse may seek periodic Court review to ascertain whether or not the receiving spouse is still disabled and in need of support.

For a real life example, see Hackenjos v. Hackenjos, 204 S.W.3d 906 (Tex. App. 2006) [where an ex-wife was ordered to pay her ex-husband spousal maintenance, his petition to modify maintenance was improperly denied because the order of spousal maintenance in the divorce decree was impliedly based on a finding of disability under Tex. Fam. Code Ann. § 8.054(b), and the trial Court had the authority to extend spousal maintenance.

The Court will look to the terms of the final divorce decree to decide whether or not the party seeking review of the maintenance award is seeking a modification of the award or seeking to continue the award.

Texas Courts have addressed the continuation of a spousal award issue recently in the Crane v. Crane, 188 S.W.3d 276, 277 (Tex. App. 2006) case. In that case, the wife filed a request for periodic review of spousal maintenance, seeking an indefinite continuation of spousal maintenance.

The Court of Appeals agreed with the wife that because she filed a request for an indefinite continuation of spousal maintenance under Tex. Fam. Code Ann. § 8.054(b) (Supp. 2005), rather than a motion to modify maintenance, the Trial Court should not have placed the burden on her to prove a material and substantial change in circumstances.

The motion for continuation of spousal maintenance placed no special burden of proof on the wife other than to prove that her disability was continuing. In finding that the motion was properly filed under § 8.054(b), the court noted that, on entering the divorce decree, the trial court only had authority to order maintenance for more than three years, as it had, under § 8.054(b), and that in the decision at bar, the trial court expressly noted that the wife could not support herself because of incapacitating physical disability.

 

 

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