In a divorce matter, child support and custody are often two (2) of the major issues being litigated or negotiated. However, while less common, determining spousal maintenance after the final decree is another common issue to be dealt with through the divorce proceedings.
As discussed in previous blog posts, there is no “alimony” in Indiana. However, there is spousal maintenance, which provides for one spouse to pay support to the other in limited circumstances. Those circumstances are 1) if the spouse is mentally or physically incapacitated, or partially incapacitated, such that they cannot support themselves, 2) if the spouse is caring for a child who is mentally or physically incapacitated or an infant, or 3) as rehabilitation maintenance while the spouse receives education or training to obtain employment1.
Spousal maintenance can be either agreed to by the parties or ordered by the Court as a part of the divorce proceedings. However, in this blog post, we will discuss modification of spousal maintenance as ordered by the Court only.
Modification of spousal support is controlled by Indiana Code §31-15-7-3(1), requiring proof of a change in circumstances so substantial and continuing to make the terms unreasonable. This standard is similar to the statute required to modify child support, as well.
The Court of Appeals has recently reviewed a case involving a modification of spousal support. In Banks v. Banks, the parties divorced in 2000, but could not agree as to spousal maintenance2. The issue was litigated as part of the divorce, and it was determined that while both parties had health problems, Wife was physically incapacitated and had no income and Husband was to pay her $500 per month as maintenance until further order of the Court.
Husband filed several failed motions to modify spousal support, and a final motion to modify in 2011. Husband had lost his job after using all available medical leave after having surgery when his medical condition worsened. The evidence showed that Husband was involuntarily unemployed due to a physical disability, and that Wife had begun to earn income from part time employment. The trial court found that Husband’s spousal maintenance payments should be reduced from $500 per month to $40 per week. Wife appealed, arguing there had been no change/improvement in her health status.
The Court of Appeals affirmed (upheld) the decision of the trial court. They found that the court may look to factors, including the financial resources of the person being paid support, and here, Wife had started to receive income on her own. Further, that Husband had suffered serious financial reductions and, “one cannot bleed a turnip”.
When modifying spousal support ordered by the court, it is important to look to a change in circumstances. Then, the next step is to determine whether the change in circumstances has been so substantial and continuing to make the terms of the support unreasonable. Knowing this can help create a case or defense for continuation of support.
One cautionary note is that the court may be unable to modify spousal support if it was by agreement of the parties and was beyond the scope or ability of the Court to order it in the first place.
We hope that this blog post has been helpful in understanding spousal support modification. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.
- See generally, Indiana Code §31-15-7-2
- See Banks v. Banks (Ind.Ct.App 2012)
