Section 26.13 Changes in Financial Condition of Parties

• Library: Family Law Deskbook and 2014 Supp

1. (§26.13) Changes in Financial Condition of Parties

One of the most pertinent factors to be considered in a modification of the amount of maintenance or child support is a change in the absolute and relative financial conditions of the parties since the original award. A change in one or both of the parties’ financial conditions, however, must be of a substantial and continuing nature. A temporary increase or loss of earning power affecting income will not support a modification. Thus, parties who suffer a loss of income as a result of a temporary reduction of hours by an employer or a strike will generally not be able to prove a “continuing” change under § 452.370.1, RSMo 2000. See In re Marriage of Bell, 720 S.W.2d 33 (Mo. App. S.D. 1986), in which the husband’s decision to go to law school instead of teach was considered insufficient grounds to reduce maintenance to the wife.

On the other hand, a severe financial difficulty caused by involuntary financial reverses or total unemployment has been held to justify a reduction in maintenance and support. See Hutcherson v. Hutcherson, 553 S.W.2d 487 (Mo. App. E.D. 1977). Counsel can be creative in these types of cases and request in the motion that the support obligation be either temporarily terminated or reduced at least partially to obtain needed relief.

In modification of maintenance cases, courts have consistently imposed a duty to attempt to become self-supporting; therefore, a former spouse cannot benefit from failing to seek work. See In re Marriage of Cornella, 335 S.W.3d 545 (Mo. App. S.D. 2011). The father sought to terminate maintenance, alleging the wife failed to become self-supporting. But the wife’s teaching degree did not aid in her employment because she was certified in Missouri and had not worked outside the home since the birth of the first child. During the marriage, the parties agreed the wife would stay home. The father’s request to terminate maintenance was denied. See also Halliday v. Boland, 813 S.W.2d 34 (Mo. App. E.D. 1991). Missouri courts have also held that voluntary retirement may not be grounds for termination of a maintenance obligation. See Leslie v. Leslie, 827 S.W.2d 180 (Mo. banc 1992). But see also Pierce v. Pierce, 215 S.W.3d 263 (Mo. App. S.D. 2007), in which the husband’s retirement was grounds for termination of maintenance.

Section 452.370.1 provides that the court must “consider all financial resources of both parties, including the extent to which the...