posted
I'm an alt for a regular on here, although I haven't posted in quite a while. I'm anonymizing this because there's a legal action in progress, among other reasons.
To be honest, I'm not quite sure what I'm looking for, but I trust this community to deliver fairly on both (or multiple) sides of any issue, and I feel like I need input from outside my cocoon.
I'll keep the initial story brief and simple -- feel free to ask questions; even knowing what you think would be useful additional data, will be helpful knowledge. I will answer as fairly and forthrightly as I can, including representing the points-of-view of the opposing parties.
I married in the late 70's, and my wife and I had three children. They're all now over 18. We divorced in 2004. I remarried in 2007, and my ex remarried in 2008.
The divorce took place in one of the few states where alimony (spousal support) doesn't end automatically (i.e., doesn't end by statute) upon remarriage of the recipient. However, from what I understand, the vast majority (~99%) of separation agreements in this state incorporate language to the effect that alimony (if any) shall cease upon remarriage of the recipient.
Furthermore, case law in this state is crystal clear that in those cases where an agreement is silent on the issue of remarriage, alimony shall end except for very rare and extreme circumstances (such as the risk of the recipient becoming indigent).
My own agreement did not have the standard cessation clause. Our divorce was mediated, our mediator was not an attorney, nor did either of us independently consult an attorney. But nor is our agreement silent. Our agreement says, in the event of the recipient's remarriage, the payor "may request to renegotiate the amount" of alimony.
Accordingly, when I learned of my ex's plans to remarry, I opened a dialogue to "request to renegotiate" the amount -- specifically, to make it zero. Her answer was no -- it was her belief that what she had agreed to allowed alimony to continue (unchanged if she so insisted) even if she remarried. She "desired" and "expected" the alimony to continue until one of the other, defined, end conditions was reached (my attaining a certain age, the death of either of us, etc.).
We mediated some more (as stipulated by our agreement), but could not reach a compromise. She would only have given up the ongoing alimony payments in exchange for a lump sum approaching its actuarial "present value". When confronted with case law, she claimed it was irrelevant to our agreement. When asked on what grounds the alimony should continue, her only answer (at first) was that it was what she "expected," "desired," and that giving it up would be "uncomfortable."
Let me cut to the chase: of course I've continued to pay as required by law. (An oddity of this situation is that if I were to suspend payments I don't think my ex would think twice about asking the legal system to enforce my obligation; and yet she doesn't seem to recognize the state's role otherwise.) We've both retained lawyers, and have a hearing scheduled for later in the summer. I fully expect to "win," in that I expect the judge to say that she would probably rule in my favor; we would then be given another opportunity to negotiate a settlement, and avoid a full trial. But in court, lots of things can happen.
I'd like to settle this sooner, because the uncertainty and stress is killing us, we have other serious issues in our lives, and the legal expenses are mounting. The legal rights seem clear but "right and wrong" are more complicated than that.
Right now I'm juggling ideas around making a renewed settlement offer. How to "sell" it to my ex? How much to give up? Whether to press on to the bitter end -- while continuing to send 1/3 of my pay to support a married woman?
posted
It sounds like you are asking for what words to say to convince your ex-wife to give up alimony without legally forcing her to.
I don't think there are any words. I'm sorry. She has no reason to give it up at all, and the longer she puts off this being decided, the more money she gets from you.
So, good luck, but I think the hearing is going to happen.
Posts: 26077 | Registered: Mar 2000
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posted
Maybe you should identify the state, on the off chance somebody can offer better advice that way.
In your shoes I'd probably be trying to get a ruling that you don't have to pay alimony.
In her shoes I might well be trying to hold on to it. (It's not clear from your post but the marriage+kids might have incurred a significant opportunity cost for her, in terms of earning power, that can't be made up in a few years.)
Who decided to get divorced? If it was your idea, or was due to some breach of the marriage vows on your part, then you might have some moral obligation to continue to support her, particularly if she was a stay at home mom and gave up many years of career development to do so. (And because you made an agreement that appears to require continued payments.)
If the divorce was her fault, then perhaps you shouldn't have been paying alimony at all. And if she is as financially comfortable in her new marriage as she would have been if you two stayed married, then I think it's wrong of her to demand the money regardless.
Posts: 4287 | Registered: Mar 2005
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posted
Expressing my thoughts about your ex-wife in full would violate the terms of service for hatrack. I think alimony, in general, is a necessary evil that should only be used if one member sacrificed their career options to support the marriage, and needs some financial support while getting back into the workplace.
To use it as second income (or in this case perhaps third), or as a nice way to get extra spending money in a second marriage is both vile and disgusting to me.
Added: Of course I'm only hearing your side, but her side would have to be awfully convincing for me to waver much.
Posts: 5656 | Registered: Oct 1999
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posted
@Kat: I believe you're right. She does have one, possibly tortuous, reason to "settle": If the judge issues a pre-trial opinion that goes in my favor, then *I* will have a diminished incentive to settle. A settlement now may be the best deal my ex is likely to get.
But that's all contingent on my ex becoming aware and/or convinced that on the legal playing field my case has significantly more weight than hers. I haven't been able to convince her of that yet (despite quite a few google links, etc.), and as far as I can tell, her own counsel seems to be encouraging -- or at least not debunking -- her theories.
I should mention that another possible incentive for her to settle is the prospect that, should I prevail in court, the judge will order restitution of the overpaid alimony as of the date of her remarriage. This is running into many thousands of dollars by now, and under most schemes of settlement that I would consider at this time, that would be wiped clean.
Posts: 10 | Registered: Jun 2009
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quote:Originally posted by puppetware: I should mention that another possible incentive for her to settle is the prospect that, should I prevail in court, the judge will order restitution of the overpaid alimony as of the date of her remarriage.
IANAL, but that is pretty unlikely.
Posts: 32919 | Registered: Mar 2003
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posted
@scifibum: I may identify the state in due course. Thanks.
quote: (It's not clear from your post but the marriage+kids might have incurred a significant opportunity cost for her, in terms of earning power, that can't be made up in a few years.)
This is a factor, but I believe it's important to note:
Reasoning of this sort, pro and con, would only have been relevant *at the time of the divorce*, when terms of alimony were defined.
A much bigger discussion could be had, around what alimony and spousal support *should* be, taking into account societal norms, inequality of the sexes, etc., etc.
In either case, all such reasoning is generally (i.e., most states, most statutes, most agreements) canceled upon remarriage of the recipient. (Barring, of course, an explicit agreement to the contrary -- some divorces, for example, may treat as alimony something like the payout of proceeds from liquidating an capital asset, in which case it's not paid off until it's paid off, regardless of remarriage.)
quote:Who decided to get divorced? If it was your idea, or was due to some breach of the marriage vows on your part, then you might have some moral obligation to continue to support her, particularly if she was a stay at home mom and gave up many years of career development to do so. (And because you made an agreement that appears to require continued payments.)
If the divorce was her fault, then perhaps you shouldn't have been paying alimony at all. And if she is as financially comfortable in her new marriage as she would have been if you two stayed married, then I think it's wrong of her to demand the money regardless.
Again, even if the divorce agreement had encapsulated some notion of "fault" (which it didn't), this would be zeroed out upon the recipient's remarriage (in the vast majority of cases).
The question of her 'opportunity cost' is interesting. I may have more to say about this. For now: She was not a traditional stay-at-home mom. She had two separate careers during the marriage, with a string of part-time jobs during the core child-raising years (approximately 5 out of the 25 years of marriage). She never didn't work. At the time of the divorce, she was contributing 1/3 of the household income, to my 2/3. The spousal support, in effect, split that difference, so that (taking tax effects into account) our post-divorce households had roughly equal resources.
This is a pretty conventional formula, not undertaken to "punish" the payor, nor to "compensate" for lost earning power, but simply to ensure that neither party suffers from the divorce out of proportion to the other, and to enable a standard of living for each as close as possible to what was enjoyed previously.
Not counting alimony or child support, her household's (with her new spouse's) income is about 20% more than mine. With child support (that I will continue to pay until my youngest is emancipated) their income is 30% more than mine. As it stands (with alimony) their income is twice mine.
Posts: 10 | Registered: Jun 2009
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quote:Originally posted by puppetware: ... Our agreement says, in the event of the recipient's remarriage, the payor "may request to renegotiate the amount" of alimony. ...
Is that what it was worded as? What possible motivation would a recipient have to accept just a request to renegotiate? (and I guess that is what is playing out)
Posts: 7593 | Registered: Sep 2006
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posted
@Rivka: Hi. Obviously IANAL either, but it's my understanding that there is generally a distinction between "permanent" alimony (set without an end-date, usually in the dissolution of very longstanding marriages), and considerations under remarriage scenarios.
You're right in one respect: At the time of the original divorce hearing, the judge opined that she would have favored permanent alimony. Our agreement set a relatively generous end-date (still 8 years away).
Case law in remarriage of the recipient seems to make no allowance for that. You and your new spouse are considered every bit as dependent on each other as you and your first spouse were. (See 'Doctrine of necessaries.') It makes sense to me -- otherwise the second marriage is some lesser sort of bond, not a "true" marriage. What then if the second marriage leads to a divorce? Is the second spouse exempted from any obligation of support, in deference to continued support by the first spouse?
The key, anyway, is: how does the law (in my state) define these terms? Did my agreement with my ex encapsulate a clear and mutually understood intention to stand as an exception to standard legal practice? If so, what was it based upon?
Posts: 10 | Registered: Jun 2009
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posted
I was wondering what the income of her new marriage were compared to what the income of your old marriage was. The only possible way I could have conceived that continuing to pay her alimony was fair would be if she had been experiencing a significantly higher quality of life while married to you. (Basically, you're rich and she's just got some middle class job.) Even then, I'm sure the law would be gray, but as it stands, the morality seems clearly in your favor. She should not be receiving support from you when her new combined household income is more than yours.
Posts: 2392 | Registered: Sep 2005
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quote:Originally posted by puppetware: I should mention that another possible incentive for her to settle is the prospect that, should I prevail in court, the judge will order restitution of the overpaid alimony as of the date of her remarriage.
IANAL, but that is pretty unlikely.
I made a motion in April for "relief" -- asking the court to suspend alimony while the action played out. I didn't expect to win, and I didn't -- the judge saw that we had non-standard language in our agreement, and did not want to act precipitously, and without understanding all the history and claims. Thus the upcoming hearing.
But in her decision, she explicitly reserved "without prejudice" her right to consider awarding restitution of overpaid alimony.
That said, I am interested to know, in general, how likely or unlikely this is, and why.
Posts: 10 | Registered: Jun 2009
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posted
@Christine: The incomes are all comparable. We were and remain solidly middle class and have never been what would be considered "rich" (by conventional first-world standards). My current income is just a bit higher than it was at the time of the divorce -- barely higher at all, in real dollars, I am guessing. She makes a good living in a professional career for which she earned an Associate's degree while we were married.
Posts: 10 | Registered: Jun 2009
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posted
In terms of right and wrong, it sounds like you're in the right.
However, based on what you've related about her attitude toward the whole thing, it doesn't sound like you can convince her to give in. She doesn't care about what's fair, and the back alimony she might stand to lose is smaller than the future payments if she wins, and anything you have to say about the likelihood of either outcome is suspect from her point of view. *shrug*
Posts: 4287 | Registered: Mar 2005
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posted
@Mucus: Yes, that is the wording. And you're right, one would wonder what motivation there could be to give up support if simply "asked." This is one reason why everyone with a legal background who has looked at my agreement, pukes. :-)
The clause does continue, stating that if the parties cannot come to agreement, that the article governing disagreements/disputes is invoked. That article -- the right-to-redress clause -- stipulates that the parties agree to mediate (at least 3 sessions) before approaching the Court with a grievance. We mediated, still failed to agree, and now it's in the court system.
And you're right, that is what is playing out.
Posts: 10 | Registered: Jun 2009
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posted
What you express as, "in the event of the recipient's remarriage, the payor "may request to renegotiate the amount" of alimony," seems to me an expectation that the alimony might in equity need to be lowered upon her remarriage. Whoever wrote it might have done better to say "reduce" rather than to "renegotiate," as that is probably what he meant - but he did not. However it hardly seems reasonable he meant it might need to be increased, so as to support her new family. If you are fortunate, a judge will see it that way.
The question is how much her alimony should be lowered, and as you never agreed to continue it forever unchanged, it seems to me you can ask for anything you consider fair. Or even ask for more than what is fair, as a bargaining point, with the resolve to abandon what is unreasonable during the negotiations. At the moment however your former wife is unwilling to concede anything, and you *think* her lawyer is encouraging that - but you do not actually know. (Many divorce lawyers have difficulty distinguishing between serving a client's best interest, and getting him the most money possible, even if the result is to ruin the relationship between the former spouses and hurt their children.) Just the same I should think a court would have broad discretion to decide in your favor, so lose the guilt over asking a court to do so. Divorce agreements have to be changed or interpreted by courts all the time, and on the whole the effect is probably to make them more equitable, even if some decisions are outrageous.
At the moment I should think both you and your former spouse are angry at one another, over each demanding more than the other thinks is right, so talking to her may hurt more than it helps - and only increase your legal bills when she has to ask her lawyer for advice. When the lawyers are actually asked to justify their positions to a judge, both may suddenly become more reasonable. However my knowledge of that is slight, so I can only wish you good fortune.
Posts: 50 | Registered: Nov 2008
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posted
Maybe when you renegotiate, you can try for her paying you (since her household income is now higher). ;-)
Posts: 2223 | Registered: Mar 2008
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posted
In Virginia, alimony ends statutorily upon the remarriage of the recipient. The payor doesn't have to file anything; he/she can just stop paying.
When I was divorced here, my ex and I put in a clause that said that my cohabitation (if any) would not impact alimony. I was one of those seriously-impacted stay-at-home moms, and an additional layer of protection seemed prudent to add. My ex did not object to this.
So when my now-husband and I decided to be together full-time, we could have continued to get alimony. I say we because it would have been both of us receiving the check. We married, for many reasons , and I personally chose not to merely cohabit, although I could have received about $29,000 a year for ... four more years? Something like that. It was not an inconsequential amount. In fact, it feels a little irresponsible sometimes, when I consider that I came into my second marriage with debts.
I could ramble on, but I guess I won't. Just add that to the file of "how people do things".
Posts: 628 | Registered: Nov 1999
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posted
@hobsen: Thanks for the good wishes. Your analysis looks sound.
@scholarette: Don't think I haven't thought it! Only in a spirit of wry humor of course. What's funny is that my ex has steadfastly declined to indicate any theory on her part of what the "renegotiation" in our agreement should be based upon. If it is to be "what is customary in the law," alimony should become zero. Other alternatives might be "equalization of income" (which was the original standard at the time of divorce, and would result in her paying me); and commonly, "need vs. ability to pay." Again, under that metric, her "need" would be defined in the law as zero, since she has a new husband.
Anyway, she denied that any of these approaches reflected what she had in mind when she signed the agreement. It appears she intended the agreement to be administered as follows: that I could ask for a reduction, and she could say no.
Posts: 10 | Registered: Jun 2009
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quote:Originally posted by puppetware: It appears she intended the agreement to be administered as follows: that I could ask for a reduction, and she could say no.
Which, technically, is what it says.
Posts: 9866 | Registered: Apr 2002
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quote:Anyway, she denied that any of these approaches reflected what she had in mind when she signed the agreement. It appears she intended the agreement to be administered as follows: that I could ask for a reduction, and she could say no.
Yeah, pretty much. I think the way the agreement was defined, set and signed during the divorce was disastrous for you.
Posts: 15421 | Registered: Aug 2005
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Here's where my thinking goes on this: Imagine I have an agreement with my neighbor. Say they agree to let me grow roses just over the property boundary, and in return, I will pay them a regular sum toward their yard upkeep. We write it up on a napkin, and sign it. It includes a line that says if the roses die or are removed, I can ask to stop making payments.
Pretty much the same (dumb) agreement. Okay so far.
Here's the thing, though. There is a general practice of contract law, parts of which might apply if the roses die, my neighbor refuses to let me stop payments, and the dispute goes to court. But there is no such state-administered, state-defined, state-enforced thing as rosebush-boundary-lawncare-mony. There is such a thing as alimony.
So the question then becomes, is "alimony," as state-defined, such an entity as may be subject to arbitrary administration, enforcement, or refusal by one of the parties? Can the other party, however foolishly, cede the state's right to define and administer alimony?* I don't think so.
*For the record, I don't think I've ceded anything, foolishly or otherwise. At worst, the agreement is ambiguous. I am simply following your points to their implied conclusion.Posts: 10 | Registered: Jun 2009
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quote:So the question then becomes, is "alimony," as state-defined, such an entity as may be subject to arbitrary administration, enforcement, or refusal by one of the parties? Can the other party, however foolishly, cede the state's right to define and administer alimony?* I don't think so.
Your agreement exists, however. And you appear to have settled yourself into that as a binding resolution because you were not wary enough about what the language in that binding resolution entailed.
The way it was worded — the state it was in when you agreed to it — was practically a scam.
Posts: 15421 | Registered: Aug 2005
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posted
It is so obviously tilted a single direction I wonder why you agreed to it. Were there other provisions that you insisted on and agreed to the alimony provision in order to get? You don't have to answer that, but if there are, then that changes the morality of the situation.
Posts: 26077 | Registered: Mar 2000
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posted
Wait, the agreement says you can request renegotiation. Then you went to mediation to renegotiate, so clearly she agreed to renegotiate. (I'm not at all sure that she had an actual choice; the wording may have been odd, but the intent is clear.)
So you have attempted to renegotiate, and you have language that allows you to go to the courts if you can't come to an agreement.
That first sentence (where you "may request") seems to no longer be in effect.
It does not seem to say or imply that your ex has "veto power" over what the amount should be.
Posts: 628 | Registered: Nov 1999
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posted
A small suggestion that may depend on the actual ages of your children: perhaps you could suggest an agreement that alimony should decrease (or cease), but that simultaneously you agree to pay a portion of what was previously paid to alimony into a fund towards education of your mutual children. If nothing else, perhaps having such an offer on the books might strengthen your case before a judge that your present alimony situation is financially detrimental to you, not a comparable benefit to your wife, and that the agreement under the present circumstances appears to amount to a punitive measure rather than a supportive one.
Posts: 3826 | Registered: May 2005
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![[Big Grin]](biggrin.gif)
, and I personally chose not to merely cohabit, although I could have received about $29,000 a year for ... four more years? Something like that. It was not an inconsequential amount. In fact, it feels a little irresponsible sometimes, when I consider that I came into my second marriage with debts.![[Smile]](smile.gif)
