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In New York State, there are three types of Spousal Maintenance. These three types of support are:
- Spousal Support – Payments made from one spouse to another during the period prior to the divorce being filed. If the couple has decided to separate, the non-monied spouse may file a motion for spousal support to be granted. In some cases, this is the only level of support that is ordered. The couple may reconcile or decide to remain married but separated for a period of time.
- Pendente Lite Spousal Support – Pendente Lite is Latin for “pending litigation.” This is the phase of support that is paid during the divorce process. As the name implies, these orders are temporary and only valid during the trial period. These orders expire upon a judgment by the judge or by the court approving a mediated or negotiated settlement.
- Post-Divorce Maintenance – As the name also implies, these are the orders that are in place once the divorce is finalized. Sometimes referred to as Permanent Support, that name is technically a misnomer since Post-Divorce Maintenance is rarely permanent and can be modified or even eliminated given specific circumstances.
While there are three different phases of support, which are all called by other names, they are all handled the same way. The amount of the payments is determined through a predetermined formula, which is used for all three types of support.
Modification Due to Extreme Hardship
Having lived through more than two years of a pandemic, we have seen many people deal with extreme hardship. For many, long-term illness has severely impacted a person’s ability to earn a living or even continue to take care of themselves. In addition, the pandemic severely curtailed a person’s ability to earn money in other cases. For example, they might have been furloughed or laid off, or their employer might have needed to shut their doors, leaving everyone unemployed.
While New York State has a mechanism for either spouse to file a motion to request a modification in the amount of Post-Divorce Maintenance, the courts are extremely reluctant to grant such modifications.
There are no specific guidelines in the law to say what would be considered extreme hardship. Therefore, it is left to the judge to evaluate the case to see if a modification is warranted.
In many cases, the court denied the request for a downward modification of support payments when the judge felt that the person either left their job or delayed finding employment voluntarily. However, even if not voluntary, the courts have often held that a loss of employment on its own does not meet the criteria to be considered extreme hardship.
In 2012, a New York judge wrote that “what constitutes an extreme hardship is a fact-specific inquiry that depends on the overall financial condition of the moving party.”
Losing a job may not constitute an extreme hardship if the person has a significant amount of savings or has other sources of income. If a person loses a job whose salary is their only source of income, and they have no savings or assets, the story might be different. The loss of the job might plunge the person immediately below the poverty line, especially if their unemployment expires before they can secure a new job.
In this case, the loss of the job has created an extreme hardship. Suppose the court didn’t put a temporary hold on support payments. In that case, the person responsible for paying could wind up in ever-increasing difficulties, such as being charged with contempt-of-court for not paying support or upon finding a job, having their wages garnished, creating a never-ending cycle of hardship and poverty. The courts do not want to create a situation where an ordered support payment will legitimately cause the payor to wind up in an untenable position, leading to increasing difficulty. If there is no money available to be paid even when the person is doing their due diligence to rectify their situation, the courts are more likely to grant the modification.
As mentioned previously regarding a long-term illness, a lack of employment is not the only thing that can cause extreme hardship. Serious medical conditions are often cited as reasons for a requested modification. The condition may be related to injuries received in an accident or a serious ongoing condition such as fighting cancer, which can cause a person not to be able to work, therefore impacting their ability to generate income.
A condition that has led many people to be unable to work and go on full disability is the condition referred to as Long Covid. Many people who came down with the SARS-CoV2 virus, especially before the vaccine was available, have been reporting severe symptoms even over a year after they had the virus. Serious long-term lung issues have been reported by people who were perfectly healthy before contracting the virus.
Spousal Support modifications are a serious consideration if your circumstances have changed and you are having a hard time meeting your payment requirements. Making a motion to have your payments modified is an option, but it is a difficult road, and the courts are going to want to see significant proof that your situation is not only not of your own doing, but you are actively working to rectify the situation if possible. If not, the courts are going to want to understand why continued payments will cause extreme hardship. Going through this process on your own will make a difficult situation even harder. If you cannot make your ordered payments due to extreme hardship, call our office for a free consultation.