NY Divorce Spousal Support is often referred to as "Maintenance". The duration and amount of Maintenance is based on many factors all set forth in a statute. The factors are many and include (although this list is not complete): the length of the marriage, the ages of the spouses, the incomes of both sides, how long it will take for a spouse to become self supporting, the ages of the children and custodial arrangement, education and/or need for additional education, sacrifices made by either person to advance the other's career, property distribution, presence of separate and marital assets, standard of living and many more factors.
When maintenance is determined by a judge after a trial with a decision the standard for a future request for a downward modification of spousal support is the unforeseen and substantial change of circumstances. This could be the loss of employment through no fault of the paying ex-spouse, medical illness, involuntary reduction in income and other significant life events.
However, when maintenance is established in a Divorce Settlement Agreement the standard for a downward modification is "extreme financial hardship". This is much more difficult to prove because all of the substantial change in circumstances requirements might be met but if the paying spouse does not have "extreme financial hardship" the application will often be denied.
For example the paying spouse might have an involuntary reduction of their income due to changes to their business (if self-employed) or mandated by an employer (no bonus or pay cuts). It is easy to show that if a person was earning $200,000 and now they earn $150,000 that there has been a 25% reduction of income. However, the court might not view the person now earning "only" $150,000 to have extreme financial hardship.
I had a client who was self-employed in the retail carpet business. During an economic recession, he was behind on his store's rent, had reduced staff, had a substantial loss of income since people were not replacing carpeting in tough economic times and likewise home sales were down so there were fewer customers replaceing carpeting after a home purchase. His reduced earnings were legitimate and documented by the financial records of his business. The court denied his request because when he and his wife were divorced three years earlier she received the house and he kept his 401k retirement account. If the house had been worth $500,000 after the mortgage was deducted and the retirement account was worth $500,000 after tax consideration the court found he did not have extreme financial hardship because he still had half a million dollars from the divorce settlement. Obviously, his ex also had the equity in the home of the same value. The money he had in the 401k was from his equitable distribution but the court stated that he had assets and would still able to pay his personal expenses such as his mortgage, utilities, insurance, car payment and therefore even though his income had significantly decreased and the duration was unknown he still had a financial cushion for his current living expenses.
The best way to avoid this problem is to attempt to negotiate a different standard for modification in the divorce settlement agreement. The agreement could state that a reduction in income that is involuntary of a specific dollar amount or percentage shall "be deemed" to meet the burden to seek modification without having to prove extreme financial hardship. For example the parties could agree that a change of 25% or greater is adequate to make the application, but it is sill up to the court to decide how much of a reduction but at least the application will be considered with a lower proof of economic consequences.
Keep in mind that if one side asks for such modification language the other side may ask that if income goes up by the same percentage or dollar amount that an application can be made for an upward adjustment. I still think it is better to have mutual modification rights than to have only extreme financial hardship as the bar to meet. This is because if a person is making more money they will still be making more money after an upward modification, but if they are earning less they will really feel the burden of the maintenance payment on less income compared to when they divorced.
Careful negotiation of financial obligations that are long lasting is vital for each side's protection as neither party may know at the time of settlement what their circumstances will be in several years. Just think how many jobs are being reduced due to the abilities of artificial intelligence, a concept that has changed so many industries and careers that likely were not contemplated five years ago.