by Samuel K. Darling, Bellevue Divorce Attorney
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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8 thoughts on “How to Modify Spousal Maintenance (Alimony) in Washington State”
Question: previous long term marriage with adult children (no child support involved), if I remarry does my new spouse’s income affect my income equalization agreement with my ex-spouse per Washington State Law. If it so, what is the applicable case law?
Hi Eric, unfortunately Washington’s rules of professional conduct prohibit us from using the comment section to advise people on how the law applies to that person’s specific factual situation. But we can answer questions about general hypothetical scenarios. If, hypothetically, a person had a divorce decree (or enforceable settlement agreement) that required him or her to continually modify maintenance to ensure the former spouses had equal incomes, the language of the document would govern whether the obligor’s new spouse’s income would be considered and how it would be considered. The court would probably parse the language and try to determine what was intended. If the decree (or enforceable settlement agreement) is unclear, the law from section I(7) of the article would probably apply. To the extent that law is unclear, it would be the responsibility of each party (or each party’s attorney) to make make an argument for his or her preferred outcome and thus try to convince the jurist.
My question is: after a maintenance agreement is agreed to by both parties, no Judge involved other than signing, can it be extended beyond the termination date by the spouse receiving the maintenance? The agreement was structured with an ending point.
Hi Rand. While I can’t comment on the specifics of what might be your case, I’ll try to answer this as a hypothetical question for the benefit of all our readers. If the maintenance has not expired, either party can ask the court to modify the maintenance obligation – including extending the end date – if there has been a relevant change in circumstances since entry of the current maintenance obligation.
Our divorce was in January 2020. My wife moved to Hurst Texas and bought a townhome and then a house with her significant other. I have been paying her $1000 a month and have to continue until Dec 2028. Since she is paying bills with this person and has been living with him for two years and they’re obviously able to purchase a house and a car, is it possible for me to either reduce or completely stop spousal support? I don’t see why I should have to support her anymore since she is essentially married.
Since the divorce I had to refinance the house to pay her off and I’ve since not been able to afford to live there anymore and had to sell the house. I am currently renting at an exorbitant rate and my job as a physical therapist assistant is not a steady one; I cannot count on my paycheck from one paycheck to the next. It is extremely stressful.
What if both parties agree to the modification? What would you have to file with the court to enforce the agreement?
I had to refi house to pay her 90k, yet even though I paid for her schooling during our marriage she was awarded 1700 child and 1513 spousal. Since June this year when finalized I am having extreme problem financially. I have only made a quarter of what I make based on support figures. Because of restraining order against me a number of property items where taken upon her and her Soulmates departure from residence. Since March 2022 she has kept my two children from me entirely and even though I have right withing decree I am unable to force due to current restraining order. I’m completely distraught over this and can’t believe how badly the man may be treated within this state within divorce and custody proceedings. Although I always provided for 5 yr old boy and 1 yr old girl and ex wife whom I was married 6 yrs I have absolutely no rights . All because I threw a stupid Rick at van I bought her after discovering this guy boyfriend of hers stuff next to bed where my stuff belonged. Our system I am loosing faith in and am competent crushed for all of this has been completely unfair. Can I get the number of a decent qualified attorney who will really work for me to set this all straight? Much appreciated
I was divorced in 2020 & my ex-husband was ordered to pay child support & alimony. Child support has ended and he is still required to pay alimony through November 2024. At the time of our divorce I had been disabled. Overwhelmed I didn’t know what my rights were , & although I had an expensive attorney, i agreed to a plan where alimony ends in Nov 2024. I will receive 55% of his retirement when he retires. However, I am 6-7 years older than him & he won’t retire until at least 55. This puts me in a position that alimony will cease & any retirement funds will not begin for another appx 7 years. At the time alimony ceases in 2024 I will only receive my disability, which will be very difficult to live on alone. My disability is permanent; however, is reviewed periodically, & I suppose really at any time could change although I don’t see that happening as my condition remains the same. No one at the time of my divorce asked me about my disability and prospect of eventual work, which is, I will not be working. I was very emotional during my divorce. Now I’m in a much better state mentally, I’m wondering why my attorney didn’t ask more questions or consider what will happen once support ends & during the period of time before retirement may start. I am very worried about my future. I have no retirement of my own. While married for 18 years, we had to use my savings during the recession while raising 5 children (I regret this often. At the time I believed we would be married and growing old together. I also was not disabled.), regardless, there wasn’t much of a choice at the time. My exe’s retirement is a pension vs mine was one we could withdraw from as a savings (but not without heavy penalties). This is why mine was used. Is it possible for me to request an extension of alimony at least for the years in between when it’s scheduled to end 11/2024 to when my ex-retires at possibly 55 depending on if he chooses to?