I am an Oakland, Michigan, divorce lawyer. My office is located close to the Fiat-Chrysler headquarters on I-75 easily accessible to Rochester, Bloomfield and Troy as well as Clarkston and Holly.
I have recently handled a number of cases where the original divorce agreement (I did not represent any of these particular clients in the divorce proceedings) provided for a formula to determine spousal support. The formulas are very specific and the clauses invariably provide that the recipient spouse will receive some portion of the payer spouse's income until the recipient dies or remarries. For instance a typical clause might basically state, “payer will pay 25% of his or her income to the recipient until death or remarriage”. In my cases, several years have passed and the payer spouse no longer believes that the formula is fair given his or her current circumstances and the recipient spouse's circumstances.
Is spousal support modifiable where there is a specific amount to be paid or a formula that determines the amount to be paid, but there is no specific termination date?
The answer is yes unless the parties specifically waive the right to modification in the judgment. This is true regardless of whether the terms of the judgment appear to provide for a specific amount of spousal support to be paid until the other spouse dies or remarries.
This proposition was restated by the Michigan Court of Appeals in Keisling v Keisling, COA 324162, January 21, 2016 (Unpublished). In that case, the judgment provided that the husband shall pay alimony in the amount of $1,000 per month from April 1, 2012 to March 31, 2017 or the death or remarriage of the wife. It did not provide any language that stated that these very specific terms were not modifiable.
The husband was a police officer at the time of the divorce earning $32.57 per hour and working full-time. In 2013, the husband sought treatment for anxiety reactions and retired from work as a police officer upon the advice of his physician. He later obtained work as a security guard earning $19.50. In the meantime, the wife started receiving a monthly pension benefit of $1,809.30. The husband filed a motion to modify the spousal support based upon this change of circumstances. The divorce court judge summarily dismissed his motion because the judge found that the alimony provision was not modifiable.
The husband appealed this decision and the appellate court reversed the lower court's decision. It found that MCL 552.28 specifically states that alimony is always modifiable “On petition of either party…the court may revise and alter the judgment, respecting the amount or payment of the alimony…and make any judgment respecting any of the matters that the court might have made in the original action.” The statute seems to allow for modification at any time, but in Michigan the common law has developed a requirement that to modify the judgment there must be a change in circumstances. Based upon the statute and the common law interpretation of it, in any case that is decided by the judge (not upon the stipulation of the parties) spousal support is always modifiable.
In this particular case however, the parties reached a settlement and stipulated to these specific terms of support. This issue was originally decided in the case of Staple v Staple (citation omitted), where the court had to decide whether parties who negotiate specific alimony terms in a settlement forgo the statutory right to petition the court to modify those terms. The court determined that the alimony provisions are not modifiable if and only if the parties to the divorce also include language that specifically states the parties are waiving their statutory rights and that they agree the alimony provision is binding and nonmodifiable.
As it relates to the matter of Keisling, the court stated that in order to have made the spousal support provisions non-modifiable, the agreement should have included language that clearly and unambiguously set forth that the parties: (1) forgo their statutory right to petition the court for modification and (2) agree that the alimony provision is final, binding and nonmodifiable. That was not true in this case, and therefore the divorce court must consider whether the change in circumstances alleged by the husband was sufficient to revisit the alimony provisions.
Spousal support as a general proposition is always modifiable unless there is very specific language that states otherwise. In cases where the parties use a formula to determine the amount of yearly support, those provisions are clearly modifiable and the amount of spousal support is subject to modification without regards to the formula included in the judgment.