Can A Maintenance Award Ever Be Modified?

Can A Maintenance Award Ever Be Modified?

Yes.  However, this was not always the case in Kentucky.  We have previously discussed the issue of maintenance and how it might be established.  But once it is established, what happens if the payor has a sudden downturn in his finances?

Kentucky courts, if they award maintenance at all, will award either permanent maintenance (i.e. until death or the recipient remarries/cohabits with someone) or “lump sum” maintenance.  Lump sum maintenance is a bit of a misnomer in that what it refers to is a situation where the maintenance award can be reduced to a lump sum, but it actually paid out in installments over time, for example $500 per month for a period of thirty-six months.  Lump sum awards are by far much more common. The problem was that until the past few years there was a Kentucky Supreme Court case that had ruled that lump sum maintenance awards were not modifiable.  That case was finally overturned in 2011 in the case of Woodson v. Woodson.

The Woodson case makes all maintenance awards modifiable where a showing of changed circumstances is so substantial and continuing as to make the maintenance award unconscionable.  This only makes sense given the fact that the statute allowing for modification or termination of maintenance has not made a distinction between permanent or lump sum maintenance and, in fact, says “any decree respecting maintenance” can be modified.  I suppose the court decided that the word “any” truly meant “any.”

Keep in mind that from my experience, the Woodson decision has only been applied to a modification of a maintenance award.  I have not seen and do not think it is likely that a court would come back after a decree is entered and then award maintenance based on a post-decree change in circumstances.  That being said, I have seen more than one case where a previously higher wage earner suddenly pleads poverty during the divorce and claims that his/her business has taken a sudden downturn once the divorce was filed.  In those situations, I have seen the court order maintenance of as little as one dollar per month for a period of thirty-six months with the idea that if the business of the obligor suddenly improves, the recipient would have standing to come back to court and ask for a modification/increase.  To my knowledge such rulings have not yet been tested at the appellate level.

With this ruling even if maintenance is awarded, it may not be locked in. If you have been hit with a maintenance award and can show that the award is no longer equitable and is now actually unconscionable, you may be able to finally get some relief.

Photo courtesy of Johan Kuno

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