Changes after the divorce: In these cases you have to pay less alimony

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“Nothing is so constant as change,” said the ancient philosopher Heraclitus. This also applies after a divorce. One day the ex-wife, who receives alimony, moves in with a new partner. Or you lose the job. Or the daughter now receives a decent apprentice wage. But you still have to pay as before. The big question: can you have the alimony reduced? One thing is clear: you cannot change alimony that is stipulated in the divorce decree or in an alimony agreement. Otherwise you risk enforcement. However, alimony can be adjusted by the judge if an amicable settlement between the parties is not possible. The condition for this is that the circumstances must have changed “significantly, permanently and unforeseeably”. And of course you should not have brought about the new circumstances yourself. So if you simply quit your high-paying job, you can’t expect to pay less alimony for your ex-wife and children.

The judge uses a comparison to determine whether financial circumstances have changed significantly. The income and expenses of the spouses upon divorce are compared with the current situation. “Depending on the court, a change in financial circumstances of five percent is sufficient,” explains Corinne Seeholzer, specialized family law lawyer in Zug. Other courts require a minimum of ten percent, others even up to twenty percent if the financial circumstances are good.

The Federal Court simply says that it depends on the individual case: the tighter the financial circumstances were when the alimony was determined, the less significant the change needs to be for adjustments to be made. It is worthwhile to inquire in advance with the relevant judge about current practice.

You must demonstrate that you were not aware of future developments when determining the alimony and therefore did not take them into account. This is often difficult because the judge assumes that foreseeable changes have been taken into account.

For example, those who want to pay less because their child has started an apprenticeship and will now earn money themselves have little chance. Because it’s clear that a child is probably going to do an internship. The result: The court assumes that this was taken into account when determining the alimony. You only have a chance if the judgment states or explicitly states that the student’s income has not been taken into account in the alimony.

According to lawyer Seeholzer, there is a good chance that you will have to pay less in the following cases:

• The side that needs child support has another child. Reason: The income must now be sufficient for someone else.
• The child moves. For example: The child previously lived with the mother, the father paid alimony and now the child moves in with him.
• The party entitled to alimony moves in with a new partner. The judge then usually assumes that the financial circumstances have changed permanently after three to six months of cohabitation. However, the alimony recipient’s rent share should actually be lower. “If only daily expenses are lower due to cohabitation, that is hardly enough for a significant change in financial circumstances,” says Seeholzer.
• Job loss. If the replacement income – usually the daily unemployment benefit – is significantly lower than the previous income. You can only apply for a reduction three to six months after the job loss.
• Higher rents and general inflation. Those who – as is currently the case – want to pay less due to higher rents and generally higher costs of living, only have a chance if the subsistence minimum is no longer covered. Otherwise, the change is not considered significant because the other party’s costs have also increased.
• The side entitled to alimony deserves more. This is relevant if the judgment clearly states that, for example, the mother is expected to be 50 percent active and have an income of 3,000 francs from the moment the child starts school and that she will later earn 3,500 francs, so significantly more. “However, if no concrete figures are kept, but the alimony is simply relatively differentiated, it becomes difficult to prove that there is significant additional income,” says Seeholzer.

Figures in the judgment or convention help

It is therefore important to record exactly what you assume in the divorce. The change is nothing more than an update of the original situation at the time. A divorce decree lays down the foundation. This means: income, expenses and assumptions that the court assumed.

“Judicial divorce decrees are therefore easier to change than amicable divorces that are based on a treaty or a settlement in court,” says expert Seeholzer. In the latter case, the principles are usually unclear: agreement has simply been reached without knowing exactly which individual factors are relevant to the level of maintenance. The result: there is a lack of a benchmark that can be used to measure whether a significant change has occurred. “There is a great risk that the court will conclude that an adjustment of the alimony contributions is not possible, because the changes that have occurred today have already been taken into account at the time of the divorce.”

New law, new case law

In amendment procedures, the question always ultimately arises whether only the income and expenditure figures at the time are updated, or whether, for example, new case law that has appeared since then – such as the change to the school level model – or whether new legislation is also taken into account. “This also varies from court to court,” says lawyer Seeholzer. But what is the same everywhere: If only the case law or law is different, but the financial circumstances have not changed significantly, permanently and unforeseen, that is not enough for change.

Judicial amendment proceedings are therefore full of uncertainties. Therefore, it is obviously best if you can reach an agreement. Otherwise, it is worth having the chances of a lawsuit clarified by a specialist. Otherwise you risk losing thousands of francs for a hopeless procedure.

Source:Blick