In today’s changing economy, it is important to understand under what circumstances an order for alimony may be modified. While litigants can read the law and understand it, knowing what actually happens in the courtroom is not always the same as the law.
In Nevada, both the basis of an award of alimony and the grounds upon which an alimony order can be modified are found in NRS 125.150. The relevant provisions regarding modification are as follows:
- If a decree of divorce, or an agreement between the parties which was ratified, adopted or approved in a decree of divorce, provides for specified periodic payments of alimony, the decree or agreement is not subject to modification by the court as to accrued payments. Payments pursuant to a decree entered on or after July 1, 1975, which have not accrued at the time a motion for modification is filed may be modified upon a showing of changed circumstances, whether or not the court has expressly retained jurisdiction for the modification. In addition to any other factors the court considers relevant in determining whether to modify the order, the court shall consider whether the income of the spouse who is ordered to pay alimony, as indicated on the spouse's federal income tax return for the preceding calendar year, has been reduced to such a level that the spouse is financially unable to pay the amount of alimony the spouse has been ordered to pay.
- For the purposes of this section, a change of 20 percent or more in the gross monthly income of a spouse who is ordered to pay alimony shall be deemed to constitute changed circumstances requiring a review for modification of the payments of alimony. As used in this subsection, “gross monthly income” has the meaning ascribed to it in NRS 125B.070.
The basic concept underlying modification is that if there has been a change of financial circumstances, the court can modify any alimony award. In addition, a reduction in the income of the payor of alimony of 20% or more is sufficient evidence of changed circumstances to warrant a modification. If a Court determines that a change of circumstances has occurred, it then considers all of the factors relevant to an original alimony determination. The first consideration for the Court is the need of the recipient of alimony and the ability to pay of the payor.
While the law seems basic, the application of the law in the real world is not necessarily so simple. The Nevada Supreme Court decisions regarding modification clarify what the Court should consider, but also confirm that alimony modification, like the original award of alimony, is primarily up to the judge’s discretion. It is for this reason that how the law is applied every day from courtroom to courtroom is crucial to any consideration.
In Clark County, the courts, in most cases, first look at the financial condition of the recipient spouse to determine whether their income is sufficient to meet their legitimate monthly expenses. Usually in this analysis, regardless of the statute and case law, the courts ignore issues of lifestyle during the marriage and focus on basic monthly needs. If there is a need for on-going alimony, the court then looks at the basic financial needs of the payor to determine how much income is available at the end of each month with which to pay alimony. Often the result, when there has been a legitimate reduction in income, is that both the payor and the recipient must “tighten their belts”.
While the foregoing analysis applies to requests by the payor to modify alimony downward, alimony is modifiable upward as well. Often this occurs when, at the time of the divorce, the historic bread winner is unemployed or experiencing a temporary reduction in income which ends after the divorce is final. This positive change in circumstances is a basis to increase what might have otherwise been a nominal award of alimony.
Even though, under the law, alimony is modifiable upward, in cases of a payor spouse using post-divorce efforts to improve their income and financial circumstances do not always, in reality, result in an increase in the alimony to be paid. If the amount of alimony that was established at the beginning is sufficient to meet the financial needs of the recipient spouse, courts seldom increase the alimony amount just because the payor spouse got a raise or increased his income post-divorce. Obviously, if the increase in income of the payor spouse is coupled with a decrease in income, disability or other negative change in circumstances of the recipient spouse, it is a whole different issue. But in general, courts are far more likely to reduce alimony based upon a reduction in income than they are to increase alimony based upon an increase in income. This is true in reality, regardless of the principles set forth in the law.