Most people are aware that, as part of a divorce, a settlement of marital assets and property is necessary. The courts, endeavor to ensure that any alimony award is equitable. That is, the award is fair based on the circumstances presented by the divorce. However, the moment the decision in a divorce proceeding is rendered is only reflective of the past. As time continues, the parties’ finances may change and the alimony award may become out of step with current realities.
Fortunately, Pennsylvania law typically permits for a party to petition the court to modify an alimony award or provision. However, the law does provide for certain exceptions to this rule. Therefore, it is essential to work with a Philadelphia divorce attorney who understands not only how initial decisions regarding the alimony will affect its modifiability but also what constitutes changed financial circumstances.
When Can Pennsylvania Alimony be Modified?
Whether alimony can be modified in Pennsylvania turns on the method that was utilized to grant the alimony payments. As a general presumption, any alimony that was paid pursuant to a court order is modifiable upon a showing of substantial and continuing changed circumstances. However, some alimony payment provisions are set forth within the out-of-court agreement that is incorporated into a divorce decree. In this specific scenario, the alimony payments are only modifiable if the contract provides for the same. Clearly, working with an experienced Philadelphia divorce lawyer who can handle legal pitfalls is essential in a divorce proceeding.
Can Elective Social Security Benefits Decisions Result in an Alimony Modification?
One may also wonder whether elective decisions made in regard to one’s Social Security benefits can give rise to valid grounds to modify alimony. This issue was recently addressed in of McKernan v. McKernan, 135 A.3rd 1116 (Pa. Super. 2016).
Here, Gerald and Teresa McKernan had divorced after 24-years of marriage. As part of the divorce, an alimony award existed pursuant to a court order. The award ordered Gerald McKernan to pay Teresa McKernan alimony in the amount of $1,106.77 per month. Since the alimony was awarded pursuant to a court order it was modifiable upon a showing of substantial and continuing changed circumstances. Sometime shortly after the alimony award was granted, Gerald McKernan filed for a downward modification of alimony due to decreased income, which was granted by the court.
Over the following three years, Gerald McKernan again claimed that his income decreased. This decrease in income was attributed to a decrease in rental revenue and the fact that to offset this loss in revenue, Gerald began drawing on Social Security benefits early. Both Gerald’s decreased income and early draw on benefits would serve to decrease his income. Gerald soon petitioned the court for an alimony modification citing this decrease in income along with the fact that Teresa McKernan was eligible for early retirement.
The Pennsylvania Superior Court noted the fact that Gerald’s election to retire early decreased his Social Security benefit by 24 percent. The court also noted that this decision proportionately reduced Teresa’s benefit as well. The court reasoned that the Gerald had already penalized his former wife by reducing the benefit she had available. The court reasoned that the effect of Gerald’s conduct was to “penalize her again by asking the court to include in her earning capacity the early Social Security benefit she elects not to take.”
Therefore, while the court recognized that 23 Pa.C.S. Section 3701(e) states that a change in a party’s income based upon retirement benefits is a “substantial change of circumstances”, there are limits to this presumption. The court recognized that “there is no authority empowering a trial court [to] order [a] wife to apply for and obtain Social Security benefits prior to reaching full retirement age.” Therefore, Gerald’s request to modify alimony was denied.
Work with an Experienced Philadelphia Divorce Attorney
The McKernan case is interesting because it shows the level of complexity that can begin to enter into alimony and alimony modification proceedings. Furthermore, Social Security concerns are frequently involved in divorce proceedings for individuals that have been married for decades. Finally, the matter also shows how concerns regarding fairness and equity affect disputes flowing from a divorce.
The Philadelphia alimony attorneys of Sadek & Cooper have helped many Pennsylvanians with their family law goals. To discuss your divorce or alimony concerns to determine whether we are a good fit for your matter call 215-814-0395 today or contact us online for a confidential consultation.