In theory, the original maintenance order, whether the result of a stipulation or contested hearing, was based on two main objectives: fairness and support. The court is required to consider the fairness of the order with respect to the financial situations of both parties. Now that you are having another child, the expense of raising that child impacts your ability to pay, which may be considered by the court. However, this change does not guarantee a modification of the order.
The support objective of maintenance recognizes the obligation to support a spouse in a manner in which that spouse was accustomed during the marriage. Based on the information that you have provided, this facts surrounding this objective remain unchanged.
In most jurisdictions, modifying maintenance requires a material change in the circumstances upon which the ordered payments were predicated. A substantial change of circumstances affecting either party’s income often satisfies this burden. The court is generally required to consider the same factors it considered when setting the original maintenance order.
The biggest hurdle for you is that the court will see your actions as voluntary. You made the choice to have this child and incur the additional expense, even though you are aware of your current maintenance obligation. The basis for a modification is stronger if the basis relates to a reason outside of your control, such as a change to your income. Courts often look to see whether the actions taken were involuntary and reasonable under the circumstances.
Many times maintenance is ordered for a set period of time, and if that is the case, that time period is specified with the expectation of an event occurring. Some jurisdictions even require that the order specify what that expected event is. For example, the order may award maintenance for four years, after which time the recipient spouse is expected to have graduated from school and be self-supporting. If that is the case, it is often difficult to modify the order prior to that time period. Also, some agreements include provisions that maintenance is non-modifiable. This would only occur in a stipulation, but if that is the case, then the order stands.
The likelihood of modifying the order depends on the specific order, the facts of your case, and the laws in your jurisdiction. I do not practice in Missouri, so I cannot inform you as to the state’s specific laws. Cordell & Cordell has attorneys that are licensed and located in Missouri, and they would be happy to discuss your case with you.
Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell P.C. where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.