How do you modify spousal maintenance (alimony) in Washington State? The party seeking modification must prove to the court a substantial change in circumstances, and he or she must do so prior to the existing maintenance obligation expiring.
The rest of this article answers I) related questions and II) provides a more detailed explanation of how to do it. If you want information on modification of a temporary order of maintenance, instead read our firm’s article on modifying temporary orders. We also have a separate article on calculating maintenance.
Table of Contents:
I. Frequently Asked Questions
1. Can the Court Temporarily Suspend Maintenance?
2. What Is a Substantial Change in Circumstances?
3. Can Maintenance Be Non-Modifiable?
4. How Far Back in Time Can a Maintenance Modification Reach?
5. Where Should a Maintenance Modification Be Filed?
6. Do I Need to Request a Maintenance Modification if the Other Party Dies or the Recipient Remarries?
7. If I Remarry, How Does It Affect My Maintenance Obligation?
II. The Process of Modifying Maintenance
I. Frequently Asked Questions
1. Can the Court Temporarily Suspend Maintenance? Yes, a judge can suspend spousal maintenance (as opposed to permanently terminating spousal maintenance) if the change in circumstances is probably temporary. A case named In re Marriage of Drlik established this principle. As explained in the Drlik case, the modification order must contain an explicit finding that the circumstances warranting maintenance are likely to resume. For example, suspension might be appropriate if the payor suffers a disabling injury or illness that prevents him or her from earning income, but there is a significant likelihood of recovery.
2. What Is a Substantial Change in Circumstances? As stated in the case In re Marriage of Spreen, the change must be one that relates to the financial need of the recipient or the obligor’s ability to pay. For examples, a change in one or both of the parties’ incomes would be relevant. But the mere passage of time and aging of the parties probably would be irrelevant.
According to the Spreen case, the change must also be one the parties did not contemplate at the time of the current maintenance award. Again, the mere passage of time would be irrelevant unless it affected the parties in an uncontemplated way, such as if aging resulted in the payor becoming disabled and unemployable. An expected retirement normally would not be basis to alter maintenance.
A voluntary reduction in income (or a voluntary increase in expenses) probably would not be an adequate reason either. Normally a voluntary reduction in income results in the court imputing the party with what he or she could make. Imputing means to treat the party as if he or she has more income.
Lastly, the change in circumstances must be “substantial”. No exact formula or definition applies – the jurist has discretion to decide whether he or she believes the change is significant enough to warrant a maintenance modification. Maintenance modifications are relatively rare, especially when compared to child support modifications. Perhaps as a result, courts seem reluctant to find a change in circumstances is large enough. The subject probably makes judges uncomfortable and thus hesitant.
3. Can Maintenance Be Non-Modifiable? Yes, maintenance can be rendered non-modifiable if the parties agree to do so. The agreement must be very clear, and it should be stated in the decree (or divorce or legal separation) or in a separation contract.
4. How Far Back in Time Can a Maintenance Modification Reach? A court can only modify maintenance obligations prospectively (future payments) – the modification cannot change payments that have already accrued. The date of the petition for modification sets the limit on how far back the court’s powers of modification extend in time. In some counties, modification takes place by motion rather than petition. In those instances, the date of the motion presumably establishes the limit of the court’s authority.
5. In What County, State, or Country Should the Modification Request Be Filed? Washington law is unclear, though the outcome is predictable in most scenarios. Logically, if the current maintenance order issued from the superior court of the county where both parties still live, any modification proceedings should occur there. Similarly, if one party moves and the other party remains in the original county, that original county’s superior court probably retains jurisdiction. But if both parties move outside the county, the proper location for the proceeding becomes debatable.
The law was already unclear before Washington’s adoption of the newest uniform support act, the Uniform Intestate Family Support Act (the “UIFS”). It is even less clear now.
The UIFS’s drafters intended to resolve jurisdictional questions for child support and maintenance proceedings in which multiple states or countries have ties to the case. Unfortunately the UIFS states where child support modifications should take place without mentioning spousal maintenance modifications. Similarly, Washington’s divorce statute speaks to which county most types of allowable family law modifications should take place but conspicuously fails to mention maintenance modifications. Moreover, a Washington Supreme Court decision mostly overturned the case law interpreting the prior version of the uniform act.
Perhaps some trial courts will nonetheless follow the old case law interpreting the prior uniform act. A well-respected treatise, Washington Practice, assumes this. Alternatively a court could apply the UIFS’s child support rules to maintenance modification proceedings. This is called “reasoning by analogy” and is quite common when child support laws address issues on which maintenance laws are silent or vague. Ultimately it is up to each of the parties to make an argument for the legal interpretation he or she believes is best.
6. Do I Need to Request a Maintenance Modification if the Other Party Dies or the Recipient Remarries? Probably not. Maintenance automatically terminates without the need for a modification proceeding if either party dies or the recipient remarries. This rule applies unless the parties have an enforceable written agreement or agreed court order to the contrary.
7. If I Remarry, How Does It Affect My Maintenance Obligation? If you pay maintenance, your obligation does not automatically terminate upon your remarriage (unlike if the maintenance recipient remarries). Likewise, the extra burden of supporting your new spouse probably does not qualify as a basis to reduce support.
Yet worse news for obligors, if your new spouse has income, it might be basis for the other side to request MORE maintenance. In re Marriage of Fox is the only precedential case law on the topic as far as our firm knows. There, the court noted that a new spouse’s income is included (often as a secondary consideration) when calculating child support, and should be considered to at least some extent when deciding whether to modify spousal maintenance as well. The exact extent that the court considers the new spouse’s income is undecided. In the Fox court’s words, “The income of the nonobligated spouse is not entirely immaterial and may be considered”. If this child support analogy plays out fully, income from the payor’s new spouse would be of secondary importance to the parties’ incomes and would only play a significant part in a limited subset of judicial decisions. For example, in child support calculations a payor’s new spouse’s income typically factors into the court’s calculations only to the extent one of the parties argues extenuating factors beyond the parties’ incomes should be considered, such as if one of the parties argues that the court should factor in the parties’ abnormal expenses.
This raises an interesting question: could a payor avoid having a new spouse’s income considered for maintenance calculations by entering a prenuptial agreement making the new spouse’s income his or her separate property? This might have some impact but is unlikely to completely remove the new spouse’s income from consideration. Under analogous child support law, the income of everyone living in the household is before the court, even the separate income of unrelated people living under the same roof. The idea is that all incomes of people living in the household are available to defray household expenses.
II. The Process of Modifying Maintenance
The process of modifying maintenance can vary largely from county to county, depending on each county’s local rules. Unlike most other types of family law proceedings, there are no mandatory state templates or even example state templates.
If you are unsure how to proceed or want to err on the side of caution, the safest option is to seek modification by first filing a petition. Click the link in this sentence for an example petition to modify spousal maintenance from our firm. Petitions of this type must be “verified”, or signed by the requesting party in the same way as an affidavit or, preferably, the same way as a declaration, as in our example. A petition to modify an order entered in a different county, state, country should include a certified copy of the existing order as an attachment to the end of the petition.
At minimum, the petition should be accompanied by a summons, financial declaration, financial source documents, and case cover sheet. Click the link in this sentence for an example maintenance modification summons from our firm. You can use the state’s child support templates for the other documents needed. Those are downloadable from the Washington State Court Form’s Website under Family Law > Child Support > Petition to Modify Child Support.
Normally a county’s procedure for maintenance modification mirrors the procedure for child support modification. Because the procedures are identical, a party can combine a petition for modification of child support with a petition for modification of maintenance and resolve both matters simultaneously.
We have a separate article detailing how to modify child support, including detailed guidance for Washington’s three largest counties. Follow the guidance there with two exceptions. First, you generally cannot serve the petition by mail in a maintenance modification, unlike petitions for child support modification. Secondly, if you need to file a motion or have a trial by affidavit, click the links in this sentence for an example motion for maintenance modification and example declaration in support of maintenance modification.
Also of note, if you need to testify other than in writing, Washington State law creates a presumption that can do so by telephone or video conference. This is the opposite of the normal presumption, which is that telephonic and other remote testimony are only allowed in special circumstances. Often commissioners and judges are unaware of this, and you might need to bring it to their attention.
That’s it! Our firm believes in making quality legal information available for free online. For more, visit the resources tab of our website, located in the upper right corner of any page. From all of us at Genesis, best of luck with your family law matter.
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