An explanation of the often-overlooked rule that spousal support can only be modified by the state that issued the initial order, regardless of where the parties currently reside.

By Melissa F. Brown, Family Lawyer

UIFSA-spousal-support300The Uniform Interstate Family Support Act (UIFSA) was promulgated in 1992 and revised significantly in 1996 and 2008. When most attorneys think of UIFSA, they think of the uniform law that determines personal jurisdiction over parents to initially file a child support action, to modify a prior child support order, or to enforce a child support order. UIFSA also outlines personal jurisdiction for the initial determination of spousal support (i.e. alimony), personal jurisdiction to enforce a spousal support order, and subject matter jurisdiction to modify and/or terminate spousal support. However, what few attorneys seem to realize is that the jurisdiction to modify spousal support is completely different from jurisdiction to modify child support.

The overriding rule regarding the modification of a spousal support order is that only the state that issued the initial order can modify the spousal support – even if neither party still lives in that state. At first blush, it may appear that this rule makes no sense, but there is logic to justify the rule.

The Logic behind the Rule

The rationale behind this rule is that since there are no universal criteria for spousal support or maintenance awards, allowing modification of one state’s order by another state would encourage forum shopping. Furthermore, since most spousal support awards take into consideration the property that each spouse is awarded – meaning the two awards are closely linked – the state that divided the property is the state that should also determine and modify spousal support.

As John Kirchner, a jurisdictional expert, noted in an email to the American Bar Association Family Law listserve on February 13, 2015, “[a] broader principle that should also be considered is that, under the full faith and credit clause, a state court can never modify any court order of another state unless the law of that other state would permit the original court to modify its orders.”

A Foolish yet Frequent Oversight

While this basic tenet of UIFSA appears fairly simple to grasp, many attorneys tend to miss this rule, even some very experienced family law practitioners. An awkward career moment is clearly one when an attorney files a modification in the state where the opposing party lives, only to have the judge explain in court that the action cannot be processed because the attorney has made a simple yet critical error. It is painful – not to mention embarrassing – to hear a judge inform your client that you filed the modification action in the wrong state.

The simple lesson to remember is that if your client wants to terminate or modify alimony either up or down, make sure you advise the client that only the state that issued the original spousal support order has the authority to take such action.

Melissa F. Brown is the principal and founding attorney of Melissa F. Brown, LLC in Charleston, South Carolina. She has over 20 years of experience and exclusively practices divorce and family law. Melissa is a Fellow of the American Academy of Matrimonial Lawyers and the International Academy of Matrimonial Lawyers. She has presented at various national and internationl CLEs and published numerous articles in national and state journals on the subject of family law.