Maintenance can be modified "only upon a showing of changed circumstances so substantial and continuing as to make the terms [of the decree] unfair." A court considering a request to modify maintenance may consider an obligor spouse's reduced income as a result of early retirement and, if the court finds that the obligor's decision was made in "good faith," meaning not primarily motivated by a desire to decrease or eliminate maintenance, and that the decision was objectively reasonable based on factors such as the obligor's age, the obligor's health, and the practice of the industry in which the obligor was employed, the court should not find the obligor to be voluntarily underemployed.
A court may consider whether an obligor spouse is voluntarily underemployed
A court may consider whether an obligor spouse is voluntarily underemployed in determining whether reduced income is a substantial and continuing circumstance that would justify modification or termination of the maintenance obligation. Reduced income due to a spouse's objectively reasonable decision to retire, made in good faith and not with the intention of depriving the other spouse of support, is recognized as a basis for modifying maintenance.
Factors to be considered when determining whether a party is voluntarily underemployed.
When a former spouse raises an allegation of bad faith regarding a change of employment, the obligor must show by a preponderance of the evidence that a decision to retire early was not primarily influenced by a specific intent to decrease or terminate maintenance.... In determining this issue, the trial court should consider the obligor's health and employment history, the availability of and expectations regarding early retirement at the time of the divorce, and the prevailing managerial policies and economic conditions at the time of retirement, together with whatever subjective reasons the obligor may offer.
This is a factual issue
Be prepared to show evidence that you are making a good faith career decision in reducing income pending retirement if you wish to have your maintenance obligation reduced.
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