What Does A Court Consider In Modifying Or Renewing An Alimony Order?

Alimony is governed by N.H. RSA 458:19. With a petition to the court and proper notice to the other party, a court may modify an alimony order. If there is an existing alimony order, then any request to renew alimony must be made within 5 years of the termination date. If there was no alimony ordered in the divorce decree, then a request for alimony must be made within 5 years of the date of divorce.

The party petitioning to modify an alimony order bears the burden of demonstrating that a substantial change in circumstances has arisen since the initial award, making the current alimony amount either improper or unfair. “Changes to a party’s condition that are both anticipated and foreseeable at the time of the decree cannot rise to the level of a substantial change in circumstances sufficient to warrant a modification of an alimony award.” For example, if the paying party retires, this may be viewed as an event that was foreseeable at the time of the original order. The court has broad discretion in determining whether or not an alimony order should be modified. An alimony modification can be made retroactive to the date that the petition for modification was filed.

In determining whether to award alimony, a court will consider the need of the party seeking alimony, and the ability to pay of the party from whom alimony is sought. In certain cases, a court may look at the assets of the paying spouse to determine if he or she has
adequate resources to pay alimony. RSA 458:19 also states that the unearned income of a spouse may be considered in a proceeding for modification only if the party who was paying alimony resigns from or refuses employment or is voluntarily unemployed or underemployed. This is important because unemployment or a diminishment in earnings can establish a change in circumstances that warrants alimony modification.

Renewal of an alimony order that is due to expire (i.e. an alimony order for a defined period of time) is subject to a different standard and does not include the “substantial change in circumstances” test. Rather, the party seeking to renew alimony must demonstrate that “justice requires a renewal or extension, and if so, what justice requires as to amount…in light of all the circumstances then existing.” In re Lyon (NH 2014). Even though this standard will be easier for a receiving party to meet than that used for modification, he or she will still need to demonstrate why he or she is unable to be self-supporting, given that the end date for the original alimony order was known at the time the order was entered.

About the Author: Judith A. Fairclough

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