Modifying AlimonyIf you have an alimony award, it can be modified at any point when there is a substantial change in circumstances. The case summary below is a good example of when an alimony award can be modified.

A.C. vs. E.C., File No. CS09-02606, Petition No. 12-18873, Jones, J. 

(February 21, 2013)

The guardian ad litem (GAL) for the husband filed a petition to modify a 2010 order where the husband was ordered to pay $340.00 per month to the wife in alimony. The husband argued that a real and substantial change in circumstance existed to allow the court to terminate the husband’s court-ordered monthly alimony obligation.

After the alimony order, the husband was admitted to a long-term care facility in Newark, Delaware. The husband’s patient pay liability after Medicaid was $2,956.96 per month. The Delaware Division of Social Services (DSS) did not take his monthly alimony amount into account. DSS explained that Delaware’s Medicaid long-term care does not allow for the deduction of an alimony obligation from available income.

The instant petition to modify was then filed where the husband, through his GAL, argued that because his court-ordered alimony payments were not deducted from his available income when DSS calculated his patient pay liability, he is unable to make both his monthly alimony payments to his wife and pay what is required to the long-term care facility each month.

The court held that states that participate in the Medicaid program have the option of developing their own methodologies for determining available income. Federal law does not explicitly exempt alimony from available income, therefore a state may choose to exempt alimony from its determination of available income in the standards set forth by the state for determining income under the state’s Medicaid program.

According to the court, the original alimony order was dated December 2010. Since then, the husband’s health had deteriorated to the point where he could no longer care for himself and was residing in a long-term care facility. The husband was to pay nearly his entire monthly income to the healthcare facility. As a result, the court was satisfied that there was a real and substantial change in circumstances since the original alimony order that justified terminating the husband’s monthly alimony obligation to the wife. “Husband can no longer afford to pay wife alimony, as nearly all of husband’s monthly income goes towards husband’s patient-pay liability for his residence at Millcroft.”

Therefore, the court terminated the husband’s alimony obligation to his wife and did not make the husband responsible for any alimony arrears that were accumulated from the time the husband stopped making alimony payments in July 2012 until the alimony obligation was suspended in November 2012.

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Article provided by Tabatha Castro, The Castro Firm

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