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Can a final marital agreement be modified after the divorce is granted

San Jose, CA |

wife signed and notarized a marital agreement. She received the settlement and divorce was granted. Now wife wants more money and monthly alimony after receiving the marital settlement. Is this allowed and can wife ask the court to modify the settlement in her benefit?

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Attorney answers 1


Though an argument could be made if the request were made immediately after she signed the Agreement, and it was entered, a spouse may request a modification of support at any time. Whether it is granted will depend on various factors. If nothing has changed between the time the Agreement was entered into and now, it will be difficult to argue a need to modify support. Below is some of the applicable caselaw and statute it references.

I hope this helps.

“Modification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. [Citations.] Change of circumstances means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs. [Citations.] It includes all factors affecting need and the ability to pay.” (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982.) “A trial court considering whether to modify a spousal support order considers the same criteria set forth in Family Code section 4320 as it considered in making the initial order.” (In re Marriage of West (2007) 152 Cal.App.4th 240, 247.)

Section 4320 provides:

“In ordering spousal support under this part, the court shall consider all of the following circumstances:

“(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

“(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

“(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

“(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

“(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.

“(d) The needs of each party based on the standard of living established during the marriage.

“(e) The obligations and assets, including the separate property, of each party.

“(f) The duration of the marriage.

“(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

“(h) The age and health of the parties.

“(i) Documented evidence of any history of domestic violence...

“(j) The immediate and specific tax consequences to each party.

“(k) The balance of the hardships to each party.

“(l) The goal that the supported party shall be self-supporting within a reasonable period of time....

“(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.

“(n) Any other factors the court determines are just and equitable.”

Nothing contained herein is intended to create an attorney-client relationship. Nor is the information guaranteed to be correct. One should always consult an attorney in person to have the entirety of one's questions answered. These answers are simply to provide general guidelines to a referenced topic and may not serve, and are not intended to serve, as direct advice.

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