Georgia law permits a court to modify a judgment providing permanent alimony for the support of a spouse “upon petition filed by either former spouse showing a change in the income and financial status of either former spouse.”(1) In modification actions, the law further authorizes a court, upon motion, to temporarily modify the prior alimony judgment, pending a final trial on the petition.(2) This article explores the rules governing temporary modification of alimony in alimony modification actions.
By statute, a court considering an application for temporary modification must “consider evidence of any changed circumstances of the parties and the reasonable probability of the petitioner obtaining revision upon final trial.”(3) Another statute makes clear, however, that the court may not consider “the merits of whether a party is entitled to alimony.” Rather, “[t]he only issue is whether there has been such a substantial change in the income and financial status of either former spouse, in cases of permanent alimony for the support of a former spouse, as to warrant either a downward or upward revision or modification of the permanent alimony judgment.”(4)
A party’s “financial status” refers to more than his income and “pertains to the conditions or circumstances in which a person stands with regard to his income and property.”(5) The statutorily-required change in “income and financial status” of an obligated party – despite use of the conjunctive – has been interpreted as requiring a change in the obligor’s ability to pay due to a change in either his income or financial status.(6) In that regard, a former spouse’s permanent alimony obligation should be temporarily or permanently modifiable based on a change in his financial status without any actual change in his income.(7) By the same token, a former spouse should not have a right to reduce his alimony obligation due to a decrease in income, where his overall net worth has increased more than his income has decreased.(8) A decrease in an obligor’s income likewise should fail to support modification of alimony where his net worth neither has increased nor diminished, yet he remains equally able to pay the previously-awarded sum.(9)
If a court temporarily reduces an alimony obligation but ultimately denies the modification petition upon final hearing, the alimony payor will become obligated to repay the portion of the prior alimony judgment which has not been paid since entry of the temporary order.(10)
(1) O.C.G.A. § 19-6-19(a). (2) O.C.G.A. § 19-6-19(c). (3) Id. (4) O.C.G.A. § 19-6-20. (5) Moccia v. Moccia, 277 Ga. 571, 592 S.E.2d 664, 665(1) (2004), quoting McClinton v. McClinton, 217 Ga. 283, 285(1), 122 S.E.2d 112 (1961). (6) Williams v. Williams, 268 Ga. 126, 127, 485 S.E.2d 772 (1997); and Perry v. Perry, 213 Ga. 847, 852(3), 102 S.E.2d 534 (1958). (7) Perry, supra, 213 Ga. at 852(3). (8) See McClinton, supra, 217 Ga. 283, 284-285(1), 122 S.E.2d 112 (1961). (9) Id. (10) See generally Shepherd v. Collins, 283 Ga. 124, 657 S.E.2d 197 (2008); and Cannon v. Cannon, 270 Ga. 640, 514 S.E.2d 204 (1999).