In our previous post, we explained how Missouri statute governs the modification of maintenance and that a party seeking a change must show a substantial change in circumstances based on changes in income or expenses. In this post, we explore how courts use this standard in practice.
Typically, in a motion to reduce maintenance, the party making the motion claims the spouse has not made good faith efforts to pursue proper employment or attain self-sufficiency. The party seeking a reduction may have to hire a vocational rehabilitation expert to testify to the income the recipient spouse could be earning. If the recipient spouse cannot provide a good explanation for the lack of change in earnings since the divorce, the court could conclude a reduction is warranted. The length of time out of the workforce and the level of education and the length of the marriage will be major factors influencing the court’s decision.
On the flip side, a party looking to reduce maintenance may cite a loss of employment that makes that party no longer capable of paying the ordered maintenance. If the loss of employment was voluntary and the party has not made good faith efforts to seek new comparable employment, the court will not look favorably on a reduction. On the other hand, if the party has been terminated and needs retraining, or has a medical condition that makes similar employment no longer feasible, the court would have a stronger basis to reduce maintenance.
As you may have gathered, the modification of maintenance is a push and pull of income sources and leads to conflicting rules. On the one hand, a party must pursue self-sufficiency and the failure to do so is a change in circumstances. On the other hand, as long as the party paying maintenance can afford to pay the ordered amount, as long as need continues the modification would not be necessary. These two rules make the case law regarding maintenance rather confusing at times, and how a case turns out depends a great deal on the facts in front of the court at a given time.
In making your case, you will need to work closely with your attorney to establish that your income loss is essentially chronic and not your fault, or that your increase in expenses is necessary, especially if related to the children – whether you are the payor or recipient. The more the court perceives you as someone trying to avoid paying or working, the less likely you will prevail.
Also remember that courts do not want to see parties come back frequently to modify maintenance; ideally, they want the sum from the divorce to hold up and eventually terminate when self-sufficiency has been obtained. And returning to court is costly, so you want to be sure of your case.
If you have questions about modifying maintenance, contact us – we can help.