The filing of a divorce complaint is the first step on a (sometimes) long road that ends in the legal termination of a marriage. Along the way, one or both parties may request the court enter temporary orders regarding spousal support, child support, possession and use of certain marital property, and protective orders. These temporary orders can be amended as the parties’ situations change during the pending of the divorce. Even “final” orders entered at the conclusion of a divorce, such as child support and alimony/spousal support, can be modified under certain circumstances. But can a court “reopen” a finalized divorce in order to award alimony if the court did not previously award alimony? In most cases, the answer will be “no.”
Alimony Post Divorce – Consider a Hypothetical Example
Consider a hypothetical divorce case involving Gene and Tina. During the pending of their divorce, the court enters various temporary orders, including an order requiring Gene to pay Tina alimony on a temporary basis until Tina is able to find suitable employment with which to support herself. When the parties appear before the court to have their divorce finalized, Tina waives alimony due to having found full-time employment. Because of this, the court does not order Gene to pay any alimony on an ongoing basis. Suppose that several months later Tina loses her job and has difficulty finding other work? Why can’t Tina go back before the court, explain how her situation has changed, and request the court at that time to award her alimony?
Modification of Alimony After a Final Hearing v. “Re-opening” the Divorce Case
A court will enter an order of spousal support in favor of one of the divorcing spouses if a spouse makes a request for alimony and demonstrates that he or she has a financial need for some form of spousal support and the other spouse is found to have the financial means to pay support. An alimony order entered at a final hearing is “final” in that the court has found the requesting spouse to be entitled to spousal support in a particular amount and for a particular duration. A final order of alimony may be able to be modified later if the spouse requesting the modification establishes that there has been a material change of circumstances warranting the modification.
By contrast, a court cannot award alimony after it has entered a final order determining no alimony is appropriate as this is an impermissible “reopening” of the divorce case. At the final hearing, the court enters orders establishing the legal rights of the two spouses based on evidence and testimony presented to the court. There is a difference between modifying support that a person was found to be entitled to by the court (which is permitted) and determining that a person is now entitled to a legal right when they were previously found not to be so entitled (which is not permitted).
So What is the Lesson Here About Alimony?
If you believe alimony may be necessary in the future (even if you do not need it at the present moment), request the court enter an order awarding you alimony, even if it is a nominal amount. The court will then be able to consider a modification of that order in the future should your circumstances change. If you do not request the court enter an order for spousal support at the final hearing, you will have effectively waived your ability to seek spousal support at any time in the future.
The Bronzino Law Firm represents divorcing couples and divorcing parents in Brick, New Jersey and throughout Ocean County, Monmouth County, and the surrounding area. Attorney Peter J. Bronzino fights aggressively to protect and advance his clients rights and interests. Whether you are seeking an order from the court for spousal support, fighting against a request made by the other spouse for spousal support, or looking to modify an existing order of support/alimony, we can help. Contact our office and schedule a free initial consultation by calling (732) 812-3102.