By Matt Allen
As editor of DadsDivorce.com, I read through every question submitted to the divorce lawyers of Cordell & Cordell through our popular Ask a Lawyer feature. A recurring theme is people wanting to know how they can get out of paying non-modifiable alimony (or maintenance) that they agreed to in the divorce decree.
Particularly in this rough economy, many people have lost their jobs and are stuck paying an amount of alimony that they no longer can afford. So why agree to non-modifiable alimony in the first place?
Cordell & Cordell attorney Jennifer Paine said some of her clients have chosen non-modifiable support because they are stuck on numbers; they want a set number to pay and a certain end date.
“Modifiable support is always open-ended so the amount could go down, but it could go up, too,” she said. “Some of my clients do not want their ex-wives to reap the benefit of their hard work and pay increases after the divorce, so they want their support based on their income during the marriage.”
Clients will sometimes set the entire amount aside and then pay monthly to take advantage of the tax deductions for paying support, which the payer does not get for making a lump sum property payment, according to Paine.
Parties may have specific reasons for electing non-modifiable alimony, but the most obvious is eliminating the potential for the amount to be modified at a later date by the court so both parties are able to plan their finances accordingly, said Cordell & Cordell attorney Bradley Cunningham.
“Conversely, in cases where alimony is modifiable, one party could file such a request with the court,” he said. “Thus, it may become a costly legal battle for one or both parties with the end result of one party paying more in alimony or receiving less.”
Paine said the trick is to pick a number and an end date the client knows he can pay, no matter the circumstances, such as losing a job.
If the parties specifically set out in their divorce decree the amount of alimony is not subject to a later modification by the court that amount becomes static and will not change.
“Most of my clients just did not understand that non-modifiable really meant non-modifiable,” said Paine.
The rules for how, or even if, alimony is awarded vary widely from state to state, so be sure to speak with an experienced family law attorney in your jurisdiction. Cordell & Cordell has offices in 30 states should you wish to consult with an attorney before making any agreement.