Getting a Reduction in Support Payments Based Upon "Extreme Hardship"

A recent case reported in the New York Law Journal on Monday, August 27th, sheds some light on when a court would be willing to reduce and/or eliminate support payments for a spouse. An upstate judge in Rochester, New York, after criticizing the ambiguity in the divorce laws that provides for a reduction in the event of an extreme hardship determined that a husband who had lost his job would no longer have to continue making previously ordered support payments.

The judge explained that the legislature failed to define the term extreme hardship and therefore "… gave little indication of how extreme the hardship had to be to qualify for modification" under the facts inPlatt v. Platt. Judge Dollinger went on to point out that without a firm definition or a prior case discussing this issue, each judge would have to determine what facts justified a reduction of such support payments. He indicated that such a determination was a fact specific inquiry that would depend upon the overall financial condition of the party making such application.

In the Platt case, the husband was unemployed when he made his application and subsisting at a level below the poverty line. The wife was merely subsisting on disability benefits. In finding that both parties were in fact enduring extreme hardship, the court went on to hold that he could not stretch family resources beyond their dollar and cents limitations. In this case, the husband had previously agreed to pay the wife $700 per month through February 2015, which sum would increase to $1,000 a month after the graduation of their daughter from college. When the petition was brought before the court by the husband, not only had he lost his job, but all unemployment benefits had ceased.

The wife opposed the husband's application, claiming that her former husband had income from doing occasional odd jobs and had not made a good faith effort to obtain employment. The wife also argued that the husband's parents had made gifts to him, of monies necessary to sustain himself. The husband explained that he had only made one home repair and earned but $180, and could no longer continue such work because he had to sell his power tools to pay for their daughter's college tuition.

The wife requested that the court impute income to the husband since she argued that he could continue to do odd jobs, and had not made a good faith effort to find new employment.

Based upon these facts justice Dollinger refused to exercise his discretion to impute income to the husband, because of the fact that his parents were making voluntary payments to him, or because he had not in fact found employment. Nor did the judge direct the husband to invade his 401(k) retirement account because the husband stated under oath that he intended to use the balance of this account to finance their daughter's college education.

The court suspended maintenance temporarily noting that if the husband obtained employment or received other benefits from other sources, it would revisit its decision and direct and immediate resumption of payments.

This case illustrates the wide latitude sitting judges have in determining these matters. It is clear that had this same case come before a different judge a contrary result might have attained. No two cases have identical facts and whether support payments will be modified will necessarily remain a hit or miss determination.