Long term spousal support arrangements are often the result of much hard-fought bargaining, which is why I always advise parties to include in their MSA an explicit and direct statement limiting the Court’s authority, post-judgment, to modify a carefully-crafted support plan. Unless its authority is explicitly and directly limited either in the judgment or in some prior order, the Court ALWAYS has jurisdiction, post-judgment, to modify the amount and duration of spousal support.
Easily enough, however, parties sometimes forget to include in their MSA specific protective provisions regarding the Court’s jurisdiction. And even in instances where they do address this issue, parties may not understand which jurisdictional model would serve them best.
Fortunately, these models are easy to describe and they all follow well-known paradigms of jurisdictional limitation and support termination.
Here they are:
Model I: Hard and Absolute Termination of Jurisdiction and Payment:
Parties designate a ‘date certain’ or an ‘event contingent date’ for termination of support. This date for termination of support cannot be modified at any point between the date when the order (or the judgment) is entered and the termination date itself.
The meaning of ‘date certain’ is self-evident. ‘Event contingent date’ refers to a future date on which a specific event will occur. Examples include ‘upon remarriage of the support recipient’ or ‘three months after the youngest child reaches 18 years of age.
Model II: Extendable, or ‘Soft’ Termination of Jurisdiction
This model is quite common—all too common, some might say, since parties often employ this model unwittingly and not always to their benefit.
Parties specify support termination either for a date certain or an event contingent date, but they also fail to address directly and explicitly the issue of the Court’s post-judgment authority to modify their support arrangements.
So the Court retains its post-judgment authority in this regard and upon a proper showing of changed circumstances and supporting facts, the Court can exercise this authority, if it so chooses, thereby extending support payment beyond the original, negotiated expectations of the parties.
Thus, the termination date in this model is ‘soft,’ since it remains open to modification by the Court, post-judgment.
But do keep in mind: Although the Court in this instance has jurisdiction to modify amount and duration of support, post judgment, whether or not the Court chooses to exercise its authority will always depend on both facts and advocacy.
Model III: Limited Jurisdiction to Extend Termination of Support
Parties assign to the Court specific rights and parameters for being able to modify the spousal support order, but with an absolute, defined limit on the duration of support. In other words, parties give the Court a hard and fast time limit: the date for support termination can be extended, but never beyond the date of X.
An example would be this: “the Court shall retain jurisdiction to modify support based upon the Recipient’s performance in college, such that if the agreed course of instruction should be delayed by factors beyond the control of the Recipient, the Court shall have authority to extend the duration of support up to one year past the current absolute termination date, but in no event will the Court be able to extend support past September 1, 2015.’
Model IV: Limited Jurisdiction to Modify Support Amount
Parties establish specific directional limits for support modification, identifying clearly the conditions that would trigger an upward or a downward change in support amount.
For example, the parties might set out that support can only be modified downwards upon proof by Payor of a substantial reduction in earnings of not less than 10%. Or, parties might state that support can be modified upwards upon proof that Recipient has further unmet needs and that Payor has the ability to pay the increased amount.
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No matter which of these models is chosen, I also recommend that parties establish specific criteria that the Court must use in the exercise of its judgment. Examples are:
- Safety valves for Payors in the event of a calamity, such as job loss
- Safety valves for Recipients, such as the allocation of burden of proof, as in Richmond
By setting forth criteria that are straightforward, observable and enforceable (e.g., graduation from a program of study by such-and-such a date), the parties make post-judgment support modification into an objective consideration, while also obviating their need to interact with each other years later. Both Payor and Recipient are spared the necessity in the future of delving into the private details of the Recipient’s life to discover the facts pertaining to the Recipient’s failure to perform as expected.
Indeed, the risk of performance failure, as well as the burden of proof, can be clearly and directly allocated in the parties’ MSA. For example, the MSA might include a statement along these lines: “Recipient agrees to accept the risk of not completing his/her program of study on the expected completion date, which is 8 months from the date of his/her entry into the program. In light of this risk, the parties agree that Recipient’s support will be reduced by X dollars on X date—i.e., 18 months from the date of Recipient’s entry into the program–whether or not Recipient graduates from this program of study on this date.”
©2011 James Frederic Cox