Can alimony be modified after the divorce is finalized?
Knowing when and under what circumstances an alimony award can be modified is critical to anyone who is about to commit to receiving or paying alimony.
Certain kinds of alimony in South Carolina can be modified if there is a substantial and unanticipated change in circumstances affecting the income of either party. Lump Sum alimony or alimony designated by order or agreement as “non-modifiable” cannot be modified.
Recently Grange Lucas went to family court in Charleston to request a modification of alimony. His former wife began receiving Social Security retirement benefits and he felt this qualified as a substantial and unanticipated change in circumstances. The Court of Appeals, in an unpublished opinion, found that former Wife’s receipt of Social Security was not an unanticipated and substantial change in circumstances and his request to reduce his alimony was denied.
I must agree with the trial judge. Social Security retirement benefits have been available to all Americans who pay into the system for nearly 80 years. Mr. Lucas’s former wife was eligible to receive Social Security and upon reaching the age of eligibility, she would begin receiving the benefit. Clearly this was known, or should have been, by Mr. Lucas and his attorney at the time of divorce.
What could Mr. Lucas have done to allow him to modify alimony upon his wife’s receipt of Social Security?
In my practice I write into agreements certain conditions which, when met, will automatically trigger a review of an ongoing alimony obligation. For example, a marital settlement agreement can state that upon Wife’s eligibility for Social Security, Husband’s alimony would be reduced dollar for dollar.
Other conditions that may be considered to require a review of alimony are:
- Children graduating from high school or college
- Termination of child support
- Receipt of pension benefits
There is an “art” to drafting marital settlement agreements. It is not always possible to anticipate all future possibilities. But future conditions that are likely to occur can be anticipated in a marital settlement agreement and a process for resolution crafted.