New Law: Upward Modifications of Spousal Support

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April 21, 2011

The general rule in Oregon for a party seeking modification of a spousal support award is that the party must show a “substantial change in economic circumstances” sufficient to warrant a modification. The question often arises as to how Oregon courts handle a situation in which the paying spouse’s income decreases and later increases to a level equal to or higher than it was pre-dissolution.

What factors are used to assess whether a “substantial change in economic circumstances” has occurred? The Oregon Court of Appeals recently answered some of those questions in the Marriage of Mitchell and Mitchell. Prior to Mitchell, the Oregon Supreme Court had decided Weber and Weber, which stood for the general proposition that an increase in income alone [of the paying spouse] is generally insufficient to constitute a “substantial change in economic circumstances.” However, Weber generally applied to situations in which a receiving spouse sought an increase in support due to a post-dissolution increase in the paying spouse’s income. It left unanswered the question of whether support payments could be restored to original levels after a subsequent reduction and then increase in the paying spouse’s income.

The Court in Mitchell held that a trial court is not precluded from restoring spousal support that was reduced due to a temporary reduction in the paying spouse’s income, even if the restoration is based solely on the paying spouse’s increase in income (and absent other factors such as the receiving spouse’s need for additional support, etc.). The Court’s holding takes into account the fact that the receiving spouse should be able to have support restored to its original level as agreed upon by the parties in the dissolution. Additionally, the Court found that it would be fundamentally inequitable to allow a paying spouse to seek a decrease in support due to a decrease in income, but prohibit a receiving spouse to seek a subsequent restoration in support due to an increase in the paying spouse’s income. Thus, the ruling in Mitchell may make it easier for persons receiving support to seek an upward modification to support payments that may have been reduced due to a temporary decrease in a paying spouse’s income.