Divorce brings enough immediate challenges that spouses don't always consider the long-term consequences of their decisions. If you're trying to negotiate a marital settlement agreement with your spouse, and if alimony is an issue, it's important to think ahead. How you word your agreement – or the terms of a decree if you go to trial and a judge orders support – can determine whether you can change alimony later, and if so, under what circumstances.
The Magic Word
Court-ordered alimony in a final divorce decree is typically modifiable – the court retains jurisdiction over the issue after your divorce is over. Most court-ordered decrees do not include the pivotal word "non-modifiable." But if you and your spouse agree to a marital settlement agreement, the alimony terms contained in it are generally up to you. If you state in your agreement that alimony is non-modifiable, the court does not have the authority to later change the amount or the duration of support. So, if you lose your job after your divorce is over, you must still pay your spouse the agreed-upon alimony. If you're receiving alimony and you become ill and unable to work, it will end at the appointed time regardless of the fact that you may have no other source of income. However, if you win the lottery after your divorce is final, your spouse cannot take you back to court to ask for more money or to reduce the obligation. If your agreement does not specifically include the word "non-modifiable," either party can ask the court to end or change an alimony obligation.
Some states, like Florida, include explicit rules for modification of alimony in their statutes. Alimony ordered for a short duration – such as rehabilitative or bridge-the-gap support – is sometimes non-modifiable by state code, even if your decree doesn't say so. For example, if the court orders that you are to pay alimony for three years -- just long enough for your spouse to go back to school or get a promotion she's due for -- it may not be subject to modification because it's not forever. If, however, the alimony award was contingent on her going back to school and she doesn't do so, you may be able to file a motion with the court to end the alimony payments prematurely because she's not living up to her end of the bargain.
Long-term alimony – the kind that usually results after a marriage of many years – is most often subject to modification. By state statute, it usually ends automatically when certain events occur, such as the death of either spouse or the recipient's remarriage. If you receive alimony, it can also end if you cohabit with someone. If you and your spouse are negotiating a marital settlement agreement, and if you expect that alimony will be of long duration, speak with an attorney to weigh the pros and cons of using the word "non-modifiable" in your agreement. For example, if you receive alimony, it may be a comfort to know that you can count on that money for a set period of time, no matter what. If something changes in your life and the amount or duration is insufficient, however, you won't be able to change it. In most cases, long-term alimony ordered in a decree is typically subject to modification if circumstances should change.
Changes of Circumstance
Circumstances of less significance than death or remarriage can occur after divorce, so if you're negotiating a marital settlement agreement with your spouse, you may need a crystal ball to get the alimony provision right. Family support obligations cannot be discharged in a bankruptcy proceeding, so if you agree to pay non-modifiable alimony, there's really no way out. Conversely, if you're reasonably sure you're going to receive a windfall in a few years, non-modifiable alimony may be a good deal for you whether you're paying it or receiving it. Even if your income increases dramatically, your spouse won't be able to take you back to court to request an adjustment for more or less money. In the end, it's a personal decision that greatly depends on your own circumstances.
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