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Alimony Modification

Nevada courts are authorized to issue Alimony awards pursuant to NRS 125.150. That statute allows the courts to order either spouse to pay alimony to the other spouse either in a specified principle sum or in period payments. The courts' directive is to issue these alimony awards as appears "just and equitable". The statute further directs the court to consider any of more than ten specified factors in determining whether alimony should be awarded and if it shall be so ordered then additionally the factors to consider in determining the amount of such alimony award. After this alimony order issues one party may at a later date wish to modify his or her alimony obligation or benefit.

This same statute, NRS 125.150, specifically allows for such modification under certain circumstances. However, keep in mind that alimony arrears already accrued cannot be waived or otherwise modified. The case law on this comes from Folks v. Folks, 77 Nev. 45 (1961) wherein the court found that though a modification of alimony could be had under certain circumstances, such modification could not be had as to accrued arrears. Five years later in the case of Day v. Day, 82 Nev. 317 (1966) the Supreme Court of Nevada stated clearly that such arrears become a vested right which cannot be modified or voided. Thus if a client comes to you as counsel requesting a modification of such arrears, as happens frequently, you must advise the client that despite whatever compelling circumstances may be present such modification is outside the authority of the court.

The other factor which is necessary for a modification is that such alimony award be in the form of periodic payment. This is contrary to lump sum alimony which is an award of alimony to be paid all at one time in one specified sum. Lump sum alimony is not subject to modification. At least the statute itself doesn't seem to lend authority for a modification of lump sum alimony and I haven't seen any Nevada case law on the subject. The rare circumstance where this could become an issue is if the lump sum obligation is to be paid out sometime in the future and between the time of the decree and time of the required lump sum payment the obligor spouse had a drastic change in income. However, given the fact that lump sum alimony is often only "alimony" in name but really a property equalization payment in disguise it stands to reason that the court wouldn't modify such lump sum award. This is because property equalization payments are not subject to modification whereas periodic alimony is.

With respect to periodic payment alimony obligations, this obligation can be modified upon a change of circumstances. The court can make such modification whether the court specifically retained jurisdiction over the issue or not. The question then becomes what type of changed circumstance is sufficient for the court to grant a modification. The statute directs the court to look at the income of the obligor spouse and to determine if his or her income as indicated on his or her federal tax return for the preceding calendar year has been reduced to an amount making it impossible for him or her to pay their required obligation. However, the statute also states that the court can consider whatever other factors it deems relevant in determining whether a modification is in order. Thus the courts have been granted wide discretion in issuing a modification of an alimony award. Thus this is the kind of situation where it is important to know what judge you are in front of and the history of rulings by this judge related to such modification requests. The statute does provide some clarity on when the court is required to review a modification of alimony. The statute specifically dictates that a 20 percent change in gross monthly income warrants such review and thus constitutes a "change in circumstances". That being said this 20% is only a benchmark for what the court must consider to be a change in circumstances. So that you can file a motion with less than 20% change but the court isn't required to deem that change sufficient.

It is also interesting to note that alimony can be modified not only as to amount but also as to duration. Thus an individual could put on a motion requesting that the duration of such alimony award be extended beyond the defined date in which such obligation was currently scheduled to expire. This of course would require a change of circumstances warranting such extension or early termination. Of course this motion would have to be filed prior to the expiration of the due date of the last alimony payment. However, even if the obligor paid off his or her alimony obligation prior to the date in which the term was set to expire the moving party would still be properly before the court as long as such motion is filed prior to the scheduled due date of the last payment. This is the rule under Schryver v. Schryver, 108 Nev. 190 (1992). To add to this, per the Siragusa v Siragusa, 108 Nev. 987 (1992) case even if the final due date has expired if the obligor party is in arrears at th time of the due date and thus hasn't satisfied his or her obligation in full at that time then the recipient party will still be timely with his or her motion to modify such support.

As counsel, be mindful of the situation where one of the spouses seeks to discharge some of their debts allocated to them in the decree. If you can demonstrate to the court that this financial obligation was taken on in exchange for what would otherwise be a greater support obligation you may be able to convince the court that this debt obligation was in the nature of a support obligation. As such the court can order the discharging party to pay the other party in an amount sufficient to indemnify the other party for debts befallen to him or her due to the other parties debt discharge. Of course, if your decree has an indemnification provision already built into it then you will not need to argue that such debt was in the nature of a support obligation as the indemnification provision will be sufficient in and of itself to protect your client. Also keep in mind that even if the court doesn't identify that separate debt to be in the nature of a support obligation and even if you don't have an indemnification provision in your decree the court can still consider a discharge of debt to be a sufficient change of circumstances to warrant an alimony medication. As soon as the obligor's debts are wiped out he or she now has considerably more disposable income in which to pay a higher amount of alimony. Thus there are a variety of ways that a discharge of debt in bankruptcy can result in a modification of alimony to the opposite spouse. By this same reasoning it stands that the obligor spouse may be able to reduce his or her obligation upon demonstration that the recipient spouse has discharged his or her debt obligation. In theory it reasons that it would work both ways.

Alimony is to terminate upon death of either party or remarriage of the recipient spouse. Cases have gone up to the Supreme Court of Nevada on the issue of whether cohabitation is likewise sufficient to terminate or modify alimony. The court has found that since Nevada does not recognize common law marriage cohabitation in and of itself will be insufficient to terminate an alimony obligation. That being said, if you can show that the recipient spouse's financial need has been reduced because of the cohabitation well then you have a good argument for a downward modification. If you can show that the alimony is being used to subsidize another cohabitant's living expenses then the court may reduce alimony to the extent of the subsidization as this is not the purpose or intent of alimony. However cohabitation in and of itself will be insufficient without demonstration that such cohabitation reduces need or results in subsidized welfare to another cohabitant.

Categories: Family Law