Question: Our divorce was finalized about a year ago. I’m paying way more than I can afford in alimony.
I’ve tried to work out a solution with my ex rather than going through the court process again, but she wants nothing to do with it, obviously.
So can I challenge the terms of alimony even though I signed off on those terms about a year ago?
In our downward economy, your predicament (unfortunately) is common. I applaud you for seeking to resolve it with your ex-spouse out-of-court, but I want you to keep in mind that until you have a court order modifying your support, any settlement to pay less with your spouse could be unenforceable – that is, the court may expect you to pay the ordered amount and charge you arrears and interest even if you agreed to pay less, and you could end up paying twice. Make sure any agreement you make is reduced to writing and signed by the judge. If you do not agree, then the chances of a successful modification in court will depend on the order language and the facts in your case.
Whether the award is modifiable depends on the specific language in the support order. If the order awarded non-modifiable support, unfortunately, it usually is non-modifiable unless a state statute requires something in addition to that language. In Michigan, for example, the parties must execute an agreement that the award truly is non-modifiable. (Making matters worse, by federal law support obligations are not automatically discharged in bankruptcy.)
If the order says it is modifiable or is silent, you may file a motion with your court to request a modification. Be prepared with specific facts and documentary evidence to show your inability to pay – paystubs, testimony from a vocational expert that you are not voluntarily un- or under-employed, financial statements from an account, etc., are all helpful here. The standard for modification varies by state, and the likely success by the temperament of the judge.
You should consult with an attorney in your area to discuss what options, if any, you have based on the particular order language and facts in your case. Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Texas. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation. Cordell & Cordell, P.C. has attorneys located in Texas.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.