Ask a Divorce Lawyer: Can the non-modifiable alimony be set aside if I lost my job?

Question: I was divorced two years ago and the decree required payment of $1,700/month for spousal support until the house was sold. The court decree did not require the house to be put on the market and no timeline to get it sold. 

So two years later, alimony has not started (alimony was mediated and fixed). At the time of the divorce I made over $100,000/year and my ex did not work. Now I have been unemployed for one year and my ex makes over $50,000/year. 

Can the mediated and non-modifiable alimony be set aside? And can the spousal support be modified/abated because of my unemployment?

 

Answer:

If I understand this question correctly, you have two orders, one for spousal support and a separate payment for alimony that will begin once the house is sold.  In addition, the divorce decree requires you to make payments until the house is sold but allows your ex-wife to remain in the home indefinitely.  

Either way, you need to contact a domestic litigation attorney immediately.  I do not practice in your jurisdiction; therefore, you should make an appointment with an attorney licensed in New Mexico. 

The provisions of your divorce decree need to be carefully reviewed.  It is odd that in the one hand your decree says that payments change upon the sale of the home but then there are no provisions regarding the sale of the home.  This could have been purposeful based on your agreement with your ex-wife or it could have been an error or oversight on behalf of the person who drafted the agreement. 

You say that mediation was mediated and fixed; did you agree that the fixed maintenance would be non-modifiable?  If the Order says that maintenance is non-modifiable, you may be stuck.  In states that do not have a non-modifiable maintenance statute, maintenance may be ordered pursuant to Section 71 of the United States Internal Revenue Code.  Your attorney will want to review your divorce decree to ensure that the required conditions were met for ordering non-modifiable maintenance. 

Since you have been unemployed for a year, you do not have any time to waste.  If maintenance/spousal support is modifiable, you will want to file a motion for modification right away.  Remember, if you are not making the ordered payments, your ex-wife could file a motion for contempt.  Generally, for a finding of contempt, the Court has to make a finding that you are capable of making the payment.  Although you are unemployed, the Court could look to any unemployment compensation you may be receiving or other assets you own which could be liquidated or sold to pay the support. If the Court finds that you are intentionally violating a Court Order, punishment could include a fine and/or a jail sentence. 

 

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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One comment on “Ask a Divorce Lawyer: Can the non-modifiable alimony be set aside if I lost my job?

    If someone does go to jail for non-payment of alimony, does that mean that they are no longer required to pay alimony? Otherwise, wouldn’t that be double jeopardy ( go to jail twice for the same alimony) ?

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