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Section 46b-86 – (Formerly Sec. 46-54). Modification of alimony or support orders and judgments

May 15, 2021 | Connecticut, Family Law

(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite or an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9, 1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before, on or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50. If a court, after hearing, finds that a substantial change in circumstances of either party has occurred, the court shall determine what modification of alimony, if any, is appropriate, considering the criteria set forth in section 46b-82.
(b) In an action for divorce, dissolution of marriage, legal separation or annulment brought by a spouse, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other spouse, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party. In the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified, including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith.
(c) When one of the parties, or a child of the parties, is receiving or has received aid or care from the state under its aid to families with dependent children or temporary family assistance program, HUSKY A, or foster care program as provided in Title IV-E of the Social Security Act, or when one of the parties has applied for child support enforcement services under Title IV-D of the Social Security Act as provided in section 17b-179, such motion to modify shall be filed with the Family Support Magistrate Division for determination in accordance with subsection (m) of section 46b-231.

Conn. Gen. Stat. ยง 46b-86

(P.A. 73-373, S. 23; P.A. 78-230, S. 39, 54; P.A. 86-359, S. 2, 44; P.A. 87-104; P.A. 89-360, S. 12, 45; P.A. 90-188, S. 1; 90-213, S. 46, 56; P.A. 91-76, S. 1, 7; June 18 Sp. Sess. P.A. 97-2, S. 105, 165; P.A. 01-135, S. 2, 3; P.A. 10-36, S. 6; P.A. 11-214, S. 8; P.A. 13-213, S. 4; P.A. 15-69, S. 43.)

Amended by P.A. 15-0069, S. 43 of the Connecticut Acts of the 2015 Regular Session, eff. 6/19/2015.

Annotations to former section 46-54: Cited. 171 C. 215; 172 C. 11; Id., 192. Absent express legislative authorization, section does not authorize retroactive modification of alimony. 173 Conn. 397. Cited. Id., 397. Questions involving modification of alimony and support depend not only on conditions as they exist at the time of the hearing but upon proof of substantial change in circumstances of either party. 174 C. 3. Payment of accrued arrears of alimony does not constitute a substantial change in circumstances as to justify modification downward of spouse’s current alimony obligations. Id., 279. Cited. 176 C. 323; 183 C. 443. Cited. 15 Conn.App. 745. Any final order of alimony may be set aside unless and to the extent that the decree precludes modification upon a showing of a substantial change in the circumstances of either party. 32 Conn.Supp. 92. Modification of alimony. 33 Conn.Supp. 44. Cited. 34 CS 628; 43 Conn.Supp. 400. Annotations to present section: Cited. 179 C. 277; Id., 685. Future alimony orders are ordinarily subject to modification in the event of a substantial change of circumstances. 180 C. 211. Trial court erred in deciding that, as a matter of law, the loss of child support payments could not constitute a substantial change in circumstances permitting modification of alimony. Id., 218. Since some alimony was awarded ($1.00 per year), with no preclusion of modification, a change can be obtained in the future if circumstances warrant. Id., 533. Cited. 181 C. 111; 183 C. 253; 185 Conn. 141; 186 C. 387; 187 Conn. 380; 188 Conn. 385; 190 Conn. 126; Id., 132; 191 Conn. 468; 194 Conn. 25; 200 Conn. 202; 204 Conn. 224; 210 Conn. 462; 211 C. 648; 213 C. 373; 214 Conn. 99; 216 Conn. 673; 218 Conn. 801. As amended applies retrospectively to orders entered prior to effective date. 219 Conn. 703. Cited. 220 Conn. 372; 221 Conn. 698; 222 C. 799; 224 C. 263; 227 C. 505; 228 Conn. 85; Id., 729; 231 C. 1; 234 Conn. 783; 236 Conn. 582. Payments that are made regularly and consistently to former spouse are to be considered by trial court in setting financial orders; there is no legal distinction between how to treat income between former spouse who pays support and former spouse who receives support. 262 Conn. 360. When a court has based a financial award on a party’s earning capacity, the court must determine the specific dollar amount of the party’s earning capacity. 309 Conn. 105. When the only substantial change in circumstances after an alimony award has been made is an increase in the income of the paying spouse, a modification of the alimony award is ordinarily not justified if the original award was and continues to be sufficient to fulfill the original purpose for which it was made; when determining whether an alimony award should be modified when the only change in circumstances is an increase in the supporting spouse’s income, the trial court may consider factors such as length of marriage, cause of the divorce, and other factors presumptively considered in determining the purpose and amount of the initial alimony award and that have not changed since that time, only to shed light on the intent of the initial award, and such reasons should not be considered as reasons for changing the purpose of the initial award. 315 C. 1. Cited. 1 CA 172; Id., 337; 2 Conn.App. 472; 3 Conn.App. 25. Continuing jurisdiction of Superior Court to set aside, alter or modify support orders under statute does not deprive underlying adjudication of finality for purposes of res judicata. Id., 322. Cited. 9 CA 498; 13 CA 330; 14 Conn.App. 541; 15 Conn.App. 745; 16 CA 412; 18 Conn.App. 166; Id., 622; 19 Conn.App. 146; 22 CA 367. No authorization for retroactive modification of unallocated alimony and support pendente lite. 24 Conn.App. 219. Cited. 25 Conn.App. 555; 26 Conn.App. 737; 28 Conn.App. 208; Id., 483; Id., 632; Id., 794; 29 CA 368; Id., 436; 30 CA 324; Id., 516; 31 CA 40; Id., 561; Id., 761; 32 CA 147; Id., 733; 37 Conn.App. 194; Id., 397; 38 CA 349; 39 CA 258; 40 CA 298; 41 Conn.App. 861; judgment reversed, see 241 Conn. 490; 43 Conn.App. 541; 46 Conn.App. 87. Speculation as to future financial circumstances of parties is insufficient to support modification of alimony or support order; party seeking modification has burden of proving substantial change in circumstances. 47 Conn.App. 354. Modification of alimony award based on party’s cohabitation discussed re judgment that precluded modification for any reason other than remarriage or death. 49 CA 529. Section governs modification of child support order after date of a dissolution judgment; regulations interpreted. 53 CA 1. Capital gains generated by asset distributed in the dissolution decree do not fall within purview of section. 70 Conn.App. 772. Award of alimony that is substantially modified, in discretion of Superior Court, and reflects de novo consideration by the court, after notice and hearing, of all relevant statutory criteria, is not abuse of trial court’s discretion and is binding on Appellate Court absent a finding by Appellate Court of a clearly erroneous standard of review by trial court. 93 CA 186. Trial court did not improperly fail to reduce alimony award on basis of a substantial change in circumstances. 110 CA 57. Evidence of a 15 per cent reduction in defendant’s income was, alone, insufficient to require the court to modify unallocated alimony and support order. 156 CA 53. Cited. 40 CS 250; 41 CS 110; Id., 429; 42 Conn.Supp. 562; 43 Conn.Supp. 400. Subsec. (a): Removal of children by custodial parent to foreign country did not constitute substantial change of circumstances so as to justify noncustodial parent withholding support payments. 177 C. 232. Cited. Id., 259. Portion of dissolution judgment which gave wife option to purchase husband’s interest in jointly owned home was an assignment of property and not subject to modification; exercise of option was contemplated by parties at time of judgment and does not constitute substantial change of circumstances warranting modification of alimony. 180 C. 285. Cited. 181 Conn. 145; 185 Conn. 7; Id., 42; Id., 573; 187 C. 464; Id., 537; 190 C. 784; 191 C. 447; 192 C. 443. Statute not designed to change common law and permit divorcing parents, by stipulation incorporated into divorce decree, to contractually limit their children’s right to support. 196 Conn. 260. Amendment applied prospectively. 210 Conn. 462. Cited. 212 C. 117; Id., 441; 217 Conn. 394; 226 Conn. 219. Court concluded as a matter of common law rather than of statutory construction that alimony orders should be treated similarly to the way that child support orders are now required to be treated pursuant to P.A. 90-213, Sec. 46. Id., 505. Cited. 235 Conn. 45; 237 Conn. 481. Appellate Court incorrectly found that trial court had no subject matter jurisdiction to modify an order under statute. 247 Conn. 724. Defendant deemed to have waived claim for support modification by not claiming that trial court abused its discretion in unjustified deviation from child support guidelines in support order. 248 Conn. 487. Statute permits court to alter order for alimony only in absence of nonmodification clause that would extend to bar requested change. 285 C. 687. In cases in which primary physical custody is transferred from the party receiving the unallocated alimony and support payments to the party making the payments, a nonmodification provision in the parties’ separation agreement does not prevent the modification of the unallocated order in an amount attributable to child support; to the extent that the application of the specific language of Sec. 46b-224 to suspend or modify a support order that purports to preclude modification appears to conflict with the general language of this Subsec., Sec. 46b-224 must prevail. 305 C. 539. When considering a motion for modification under Subsec., court must first determine whether moving party has established a substantial change in circumstances, and, in making such determination, if party’s voluntary action gave rise to the alleged substantial change in circumstances warranting modification, court must assess motivations underlying the voluntary conduct in order to determine if there is culpable conduct of the party to preclude a determination of substantial change in circumstances; crux of inquiry is culpability not voluntariness. 310 C. 665. Holding in 315 Conn. 1 does not apply to child support orders; plaintiff not required to show additional circumstances, beyond the increase in defendant’s income to justify modification of child support award under section. 321 C. 323. Trial court had authority to entertain and determine plaintiff’s claim seeking a modification of a dissolution judgment which authority was derived from court’s plenary and general subject matter jurisdiction over dissolution actions and its authority under Sec. 46b-81(a) to assign to either spouse all or any part of the marital estate. 328 C. 376. Cited. 1 CA 138; Id., 356; Id., 400; 2 CA 160; Id., 239; 3 CA 261; 4 Conn.App. 275; Id., 398; Id., 489; Id., 663; 5 Conn.App. 85; Id., 198; Id., 355; 6 CA 98. In the absence of an express, unambiguous statement in the decree precluding modification, statute permits modification under circumstances set forth. Id., 253. Cited. 7 CA 92; Id., 624; Id., 720; 8 CA 76; Id., 114; Id., 356; 10 CA 391; Id., 576; 12 CA 113; Id., 521; Id., 616; 13 CA 512; Id., 681; 14 Conn.App. 195; 16 CA 114; Id., 134; Id., 193; 19 CA 161; Id., 534; 21 CA 5; 23 CA 58; 24 Conn.App. 509; 25 CA 82; Id., 231; Id., 563; Id., 595; Id., 693; 27 CA 724; 28 Conn.App. 854; judgment reversed, see 228 Conn. 85; 32 CA 465; 34 Conn.App. 785; judgment reversed, see 235 Conn. 45; 35 Conn.App. 228; 36 CA 794; 37 CA 209; 39 CA 669; 41 Conn.App. 382; Id., 716; 44 CA 99; 45 Conn.App. 737; 46 CA 327; 49 CA 536. Trial court has authority to determine, sua sponte, whether an award is alimony or support, or a property settlement; trial court may find that an obligation was intended as property settlement made pursuant to Sec. 46b-81 and therefore nonmodifiable pursuant to this Subsec., despite the fact that a judgment has conditions attached terminating the obligation, or that there is a later stipulation modifying the obligation. 54 CA 142. Retroactive modification of alimony pendente lite orders by the pendente lite court prior to dissolution judgment held not improper. Id., 304. Child support award found not to be modifiable even though it exceeded presumptive amount set by the child support guidelines in case in which defendant’s gross earnings did not increase and the parties had agreement that limited modification to a change in circumstances reflecting an increase in gross earnings in excess of a specified amount. 56 CA 459. Alimony may be suspended under statute where there is a distinct separation agreement. 59 CA 628. Statute deprives Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for assignment of property of one party to the other party under Sec. 46b-81; court improperly applied the law and abused its discretion by modifying child support order without first finding that there was a substantial change in the circumstances of one of the parties. 70 Conn.App. 212. “Pending motion” as used in Subsec. means “remaining undecided”. 88 CA 246. Plaintiff failed to demonstrate, as required by the consent to judgment, that defendant was gainfully employed and therefore there was no substantial change in circumstances; trial court was effectively precluded from granting plaintiff any relief. 102 Conn.App. 1. Court may increase plaintiff’s alimony based on motion to increase alimony under Subsec. despite defendant’s motion to reduce or terminate alimony under Subsec. (b). 124 CA 472. Court abused its discretion in failing to find the presumptive amount of child support pursuant to the guidelines and in issuing the combined child support order without justifying a deviation from the guidelines. 132 Conn.App. 291. Court abused its discretion by granting plaintiff’s motion to modify alimony when plaintiff’s employment situation had not changed since the original judgment of dissolution and court could not reasonably find that there was a decrease in plaintiff’s earning capacity that constituted a substantial change in plaintiff’s financial circumstances. Id., 339. Defendant failed to meet burden of showing a substantial change in circumstances that was not tainted by his culpable conduct of commingling his assets with those of his new spouse and making large gifts to his new spouse and to his children without consideration. 136 CA 210. If a party makes a preliminary showing that an affidavit submitted at the time of dissolution was inaccurate, that the error was not intentional or misleading, and that it would be inequitable to rely only on the mistaken information, a postdissolution court may consider factors other than the financial affidavit to determine if there has been a substantial change of circumstances. 156 CA 739. Court lacked subject matter jurisdiction to enter postdissolution orders modifying property distribution provisions in a judgment of dissolution even when parties submitted a stipulation requiring that the court modify the order. 157 CA 587; judgment reversed, see 322 C. 757. To the extent that Sec. 46b-224 conflicts with general provisions of Subsec. precluding retroactive modification of child support unless service of process requirement in Sec. 52-50 is satisfied, Sec. 46b-224 must prevail; while child support portion of unallocated support award was subject to retroactive modification, court lacked authority to retroactively modify alimony portion of unallocated support award or supplemental bonus alimony award due to defendant’s failure to provide plaintiff with proper service of motion to modify in accordance with Sec. 52-50. 161 CA 271. Provisions for the payment of child care costs are part of an order of child support and are subject to the prohibition against retroactive modification under section. 164 CA 665. Subsec. does not require court to make a modification retroactive to the date of service of the motion for modification. 172 CA 767. Subsec. limits court discretion to modify a support order with retroactive effect to the date upon which the motion to modify was served upon the opposing party. 176 CA 658. Cited. 41 CS 100; 44 Conn.Supp. 431. Subsec. (b): Cited. 185 Conn. 42; 186 Conn. 167; 191 C. 328. Trial court cannot on its own initiative consider alimony termination under statute; notice required by a written motion. Id., 468. Cited. 192 Conn. 443; 237 Conn. 481. Despite a divorce dissolution judgment that provided for termination of alimony upon recipient’s “cohabitation” with an unmarried male, trial court was properly guided by statute’s requirement that there be a change in financial circumstance prior to termination of alimony. 247 C. 715. Plaintiff had to demonstrate that defendant’s remarriage had a financial impact pursuant to the dissolution judgment, even though statute only references cohabitation; legislative intent has no bearing on whether parties or dissolution court can invoke statute for a different purpose in an agreement or decree. 276 C. 491. Without written notice, the court has no authority to terminate periodic alimony under statute. 1 Conn.App. 356, 361. Cited. 4 CA 165; 5 Conn.App. 198; 7 Conn.App. 92; Id., 361; 8 Conn.App. 356; 17 CA 291; 32 Conn.App. 147; 40 Conn.App. 570; 41 Conn.App. 716; 46 Conn.App. 327. Judgment of dissolution provision supersedes statutory provision re payment of alimony. 47 CA 729. Although plaintiff established that defendant was cohabiting with another person, he failed to show that defendant’s financial needs had been altered as a result of the cohabitation, thus trial court did not abuse its discretion in denying motion to modify or terminate periodic alimony. 67 CA 628. Once court finds cohabitation and a change in financial needs of the party receiving alimony and cohabitating, court must consider factors listed in Sec. 46b-82. 91 CA 840. Trial court properly rejected defendant’s claim that his cohabitation with another woman served as a proper ground for modification of alimony as to term. 102 CA 90. When court, in setting alimony award pursuant to Sec. 46b-82, quantifies person’s financial needs in terms of dollar amounts at time of dissolution, proper way for court to subsequently determine whether such person’s financial needs have changed as a result of cohabitation is to quantify such person’s financial needs in terms of dollar amounts during period of cohabitation. 109 CA 316. Subsec. does not require a court to reduce alimony if a party proves that the other party’s financial circumstances have changed as a result of his or her choice to live with another person; there is no language in Subsec. to preclude a party who is receiving alimony from pursuing a motion to increase alimony. 124 Conn.App. 472. Divorce judgment requiring payment of alimony only until date of cohabitation required court to terminate alimony as of that date despite discretion under section to modify or amend in other cases. 144 CA 319; judgment affirmed, see 316 C. 182. Trial court interpreted Subsec. too narrowly by focusing on lack of proof of financial contributions made by defendant’s boyfriend, with whom she was living, to the exclusion of defendant’s savings as a result of moving in with boyfriend. 181 CA 716. Cited. 45 CS 94.

See Sec. 17b-743 re direction that payments under support order be made to Commissioner of Administrative Services or local welfare department.