After a divorce judgment has been rendered, personal situations of the parties may change significantly and durably. In such cases, it is possible to initiate a new procedure to modify the divorce judgment.
However, if the divorce settlement specifically excluded any future modification of the divorce judgment, there is no possibility to review the agreed-upon amount for spousal support. This is the application of Article 127 of the Swiss Civil Code (CC) [1].
For other cases, Article 129 CC allows for the modification (decrease, removal, suspension, adjustment, or increase) of spousal support. A modification can be obtained if one of the ex-spouses' situations changes significantly and durably. It does not matter whether the new situation could have been foreseen at the time of the divorce (ATF 5C.214/2004).
The modification procedure aims to adjust the spousal support to new circumstances, but it does not involve setting it anew in its entirety. It is not possible to correct what was not settled in the divorce proceedings. If a fact existed at the time of the divorce but was not considered, it cannot be regarded as a new fact for correction, unless it could not have been raised at that time [2].
Criteria for Modification
Changes in Economic Situation: Modification of spousal support assumes that the economic situation of at least one of the spouses has changed after the divorce [4].
New Facts: Only genuine new facts can initiate a modification of spousal support. This includes facts that occurred or evidence that became available only after the last opportunity to raise new arguments in the previous procedure that led to a final judgment. Genuine new facts also include facts that existed at the time of the previous procedure and were known to the party invoking them now but could not be raised at that time [5].
Examples of new facts may include job loss, a reduction or increase in activity or income, the birth of a child recognized by the debtor, or long-term illness or disability [6]. However, the schooling of a child is not considered a significant change [6].
Significant and Durable Facts: A modification of spousal support will only occur if the new facts in the spouses' situations are significant and durable. Minor or transient fluctuations in the ability to pay or the needs of the beneficiary are insufficient to justify a modification [7].
Types of Modification
Decrease, Removal, or Suspension of Support (Art. 129 al. 1 CC): If a change in the financial situation of one spouse creates an imbalance unfavorable to the debtor, the judge may decrease, remove, or suspend the support for a specified duration. This change can be caused by a deterioration in the debtor’s situation or an improvement in the creditor’s situation. However, the modification will only occur if no contribution that ensures appropriate support for the creditor was established in the divorce judgment.
Adjustment for Inflation (al. 2): Article 129 al. 2 CC allows the creditor to request an adjustment for inflation for the future. Two conditions must be met: the parties must have waived the option granted by Article 128 CC at the time of divorce, and the debtor’s income must have increased unpredictably since the divorce. The income considered is that stated in the divorce judgment or settlement. The effects of indexation will be the same as those provided by Article 128 CC. The adjustment must be based on the increase in the cost of living, not the debtor’s increased income.
Allocation and Increase of Support (al. 3): According to Article 129 al. 3 CC, the creditor may, within five years of the divorce, request the allocation or increase of support if the debtor’s situation has improved since then, and the divorce judgment acknowledged that it was not possible to establish an adequate support amount. The support must be insufficient to provide appropriate maintenance for the creditor, reflecting the standard of living during the marriage (Art. 125 CC). Further increase or establishment of support under Article 129 al. 3 CC is only possible if the divorce judgment recognized that the support was inadequate for proper maintenance [8].
If you wish to initiate a procedure to modify a divorce judgment or need advice for your legal steps, our team of professionals will be happy to welcome you to our offices located at rue du Valentin 1, 1004 Lausanne, Switzerland.
[1] www.divorce.ch
[2] CPra Matrimonial – Manon Simeoni, Article 129 CC, Note 5.
[3] CPra Matrimonial – Manon Simeoni, Article 129 CC, Note 10.
[4] CPra Matrimonial – Manon Simeoni, Article 129 CC, Note 11.
[5] CPra Matrimonial – Manon Simeoni, Article 129 CC, Note 19.
[6] CPra Matrimonial – Manon Simeoni, Article 129 CC, Note 23.
[7] CPra Matrimonial – Manon Simeoni, Article 129 CC, Note 28.
[8] CPra Matrimonial – Manon Simeoni, Article 129 CC, Notes 76-80.
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