Modifying Spousal Support Based on the Payor’s Mental Health

New York Law Journal

The examination and focus on mental health in the legal profession and beyond has been gaining ground for some time now. Before the pandemic, in March 2018, Joseph Milowic III of Quinn Emanuel Urquhart & Sullivan wrote a moving article in this Journal regarding depression in the practice of law and the importance of finding meaning in what we do. After the pandemic, mental health issues have certainly come to the forefront on a variety of levels. Edward Steinberg, president of the New York State Trial Lawyers Association, wrote an article in August 2020 also in this Journal emphasizing the need to bring the topic of mental health “out of the shadows.” The mental health impact of coercive control in the home—on the victim-spouse and children who occupy that home—has also been a continuing source of discussion particularly during the pandemic when an alarming increase in domestic violence has been reported.

A recent decision from the First Department, Palmer v. Spadone-Palmer, 2021 NY Slip Op 00122 (1st Dept. 2021) illustrates a unique intersection between mental health considerations and matrimonial law. A parent’s mental health may well come into play when custody is in dispute. Palmer is not a decision on custody. Rather, it addresses a matrimonial litigant’s mental health on a purely financial issue—specifically, when and under what circumstances it is appropriate to modify a party’s obligation to pay spousal support that was delineated in a settlement agreement.

At the outset, it must be noted that modifying a spousal support obligation that was negotiated and built into a settlement agreement is a tall order in the state of New York—even that description may be an understatement. As the Palmer decision states in its very first paragraph: “An order or judgment incorporating an agreement providing for maintenance will not be modified without a showing of extreme hardship.” Without even examining the decisional law that considers what constitutes “extreme hardship,” the nomenclature alone suggests a steep burden.

A severe physical injury presents a relatively straightforward example of what might bring about a cognizable claim of extreme hardship, e.g., the payor is involved in a devastating car accident that leaves him or her incapable of functioning—physically or mentally—at a level that would enable him or her to continue to earn as he or she did when a settlement agreement was signed.

The Palmer decision examines a more nuanced example of what might constitute extreme hardship—the deteriorating status of the payor’s mental health. In Palmer, the parties had a settlement agreement which they entered into in the year 2014. The (former) husband sought to modify his obligations under that agreement by terminating his duty to pay spousal support to his (former) wife, citing extreme hardship.

While the wife argued that the husband’s claims of extreme hardship were “undermined by the proof of his lavish lifestyle,” that is not the focus of this article. Rather, the focus is on the First Department’s decision that the wife did not present a sufficient basis to revisit the trial court’s determination that the “adversity to have befallen the husband was not voluntary, and its finding that, in turn, he was entitled to an extreme hardship determination as to maintenance, and to a finding that, as to child support, he had established a substantial change in circumstances due to no fault of his own.”

The First Department’s decision not to disturb the trial court’s findings regarding the “adversity to have befallen the husband” was explained as follows:

The court explained why it was persuaded by the testimony of the husband and his treating psychologist that the husband’s life and career had plummeted due to forces beyond his control. His extensive history of childhood abuse and other trauma did, as the wife contends, predate the settlement agreement, but the court found the husband and his psychologist credible on the point of how the memories of such traumas had been repressed, and credible as to the detrimental effects on the husband’s life and career caused by their resurfacing, which effects included panic attacks, PTSD, and abuse of alcohol to an extreme degree.

In other words, even if the husband’s mental health condition was to some degree known at the time when the settlement agreement was executed, that did not preclude a later finding that he established extreme hardship sufficient to modify his spousal support obligations. And while the wife tried to “cast doubt” on the credibility of the husband and his psychologist, she “neither called an expert to present competing testimony at trial nor sought an independent mental health examination of the husband before trial.”

The Palmer decision does not open the floodgates to claims made by the maintenance payor about mental health conditions that predate settlement agreements, thereby lessening the extreme hardship burden of proof. Instead, the decision reflects appropriate consideration being given to a serious issue based upon the trial court’s review of the evidence and weighing of credibility as to the testimony given at trial. The party seeking to modify maintenance in a settlement agreement still faces a daunting burden of proof; Palmer does not deviate from that. From a trial lawyer’s perspective, Palmer is yet another reminder that it is simply not enough to voice disagreement, i.e., as the First Department noted, the wife had avenues to provide counter-evidence, but she did not do so.

If adverse childhood experiences are to be considered when determining whether or not a maintenance payor has satisfied the extreme hardship burden of proof, then it begs the question whether and to what extent other areas of matrimonial law—beyond applications solely relating to custody—are likewise giving sufficient weight to those same experiences, whether in the context of applications for temporary exclusive use and occupancy of the marital home or otherwise. This important conversation should continue.

“Modifying Spousal Support Based on the Payor’s Mental Health,” by Alan R. Feigenbaum was published in the New York Law Journal on April 7, 2021.

Reprinted with permission from the April 7, 2021, edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or or visit