Requirements for & Evidence to Prove Modification Claim

As generally discussed in our article entitled "Modification of Child support: Requirements," there are several requirements that must be met before a party may successfully assert a claim for the modification of child support. Because the sections of Georgia law concerning the modification of child support also govern the modification of alimony, the requirements for a claim to modify alimony almost mirror the requirements to assert a claim for the modification of child support. Generally, a Petition for Modification of Alimony must show the following in order to assert a valid claim:

1. That the final order or decree was previously entered awarding permanent alimony payable to or by the petitioner;
2. That the permanent alimony is payable in weekly, monthly, or some other periodic installment;
3. That there has been the required change in condition, as mandated by O.C.G.A. §§ 19-6-19 and 19-6-18;
4. That the alleged change in condition occurred between the date the original order or decree was entered and the date the petition for modification is filed. In situations where a prior modification action was filed and fully adjudicated, the change in condition must occur between the date of the order on the prior modification claim and the date the current petition for modification is filed;
5. That the petition for modification is not being filed within a two year period from the date of a final order on a previous modification action filed by the same former spouse. This two year limitation does not apply if the modification action is being filed to modify the initial judgment and decree concerning permanent alimony.

See O.C.G.A. §§ 19-6-18, 19-6-19 and 19-6-21. See also Holland v. Holland, 222 Ga. 467 (1966), McClinton v. McClinton, 217 Ga. 283 (1961), Thorp v. Thorp, 258 Ga. 220 (1988).

Once the above cited requirements have been met, the party initiating the alimony modification action must put forth evidence showing that there has been the required change in the income and financial status of the obligated spouse as required by O.C.G.A. 19-6-19. In alimony modification actions, the judge presiding over the matter should consider every fact, relevant to the matter, which has a bearing on whether the required change in income or financial status has indeed occurred. Gallant v. Gallant, 223 Ga. 397 (1967). The judge presiding over the matter may consider the following, among other factors, to determine if the necessary change in circumstance has occurred:

• Changes in the obligated spouses net income;
• Changes in the fixed debts or obligations of the obligated spouse;
• The obligated spouses personal living expenses.

See Butterworth v. Butterworth, 228 Ga. 277 (1971) and Kaufmann v. Kaufmann, 245 Ga. 721 (1980).

Additionally, because the relevant statutory law concerning the modification of alimony allows alimony to be modified based on a change in the income and financial status of either spouse, the financial status of the recipient spouse may be analyzed as well to determine if a modification of alimony is necessary. See O.C.G.A. §19-6-19.