Can a husband always terminate spousal support upon retirement?
In the Virginia Court of Appeals case of Brown v. Brown, 53 Va. App. 723, 674 S.E.2d 597 (2009), a former husband filed a petition to terminate spousal support due to a material change in circumstances, his retirement. In the final decree of divorce entered in the Virginia Circuit Court some five years earlier, the husband had been ordered to pay a set amount of spousal support each month indefinitely. The husband and wife had not entered into a separation agreement or property settlement agreement prior to the divorce.
After the divorce, the wife filed a show cause petition in the Virginia Juvenile and Domestic Relations District Court to force husband to pay an arrearage in the court-ordered spousal support payments. The parties settled the show cause proceeding with a consent order.
Approximately three years later, the husband retired and filed a motion in the Virginia Juvenile and Domestic Relations District Court to terminate spousal support due to a material change in circumstances. The wife filed a motion to dismiss, which was granted by the judge, and the husband appealed to the Virginia Circuit Court. The Circuit Court affirmed the lower court’s decision and found that the order was a consent decree that could not be modified or terminated at the request of just one of the parties and that the order was a stipulation or contract under Section 20-109(C) of the Code of Virginia which did not itself provide for modification or termination.
The Virginia Court of Appeals recognized that general rule that a court can modify or terminate a spousal support order by proving both a material change in circumstances and that this change warrants a modification of support. Under Section 20-109(C), the court’s right to modify or terminate support may be limited by a contract between the parties, such as a separation agreement or property settlement agreement, incorporated into a decree or court order in a case for divorce, annulment or separate maintenance in the Circuit Court, or in a case for child support or spousal support under Section 16.1-241(A)(3) or (L) in the Juvenile and Domestic Relations District Court. The Virginia Court of Appeals recognized that a consent decree may constitute a stipulation or contract, but does not constitute a contract in every case. In this case, the wife did not meet her burden of proving a contract because the consent order arose out of a show cause proceeding, not a proceeding to modify spousal support. The consent order did not concern the amount of spousal support, but the manner in which husband would pay the arrearage in spousal support. In addition the consent order did not purport to settle all matters between the parties. Since the consent order did not modify or supplant the support provision in the final decree of divorce, the support provision in the final decree of divorce could still by modified by the court. In dicta, the court noted that if the parties had truly intended to modify the final decree of divorce, the parties could have asked the Circuit Court to incorporate the consent order.
You should consult with your bankruptcy or divorce lawyer to discuss whether your support obligations may be modified upon your retirement.