Court can't alter alimony contract


            Posted on Sep 1,2013       

            Court can't alter alimony in independent contract.


Q.        I got divorced in 2007.  I signed a separation agreement requiring me to pay $1,100 monthly alimony until my wife reached age 65 plus $700 a month for support of our two children who live with her, plus the kids' medical insurance and reasonable college expenses. The oldest child starts college in another year.

I also paid my wife a $750,000 lump sum to equalize the marital estate. The alimony and property division survived the judgment as an independent contract.

Now my wife's $750,000 is worth about $250,000 due to her poor investment decisions.  My $2 million inheritance went up to $9 million. 

My ex went to court seeking increased alimony and child support, plus her legal fees.  At the first hearing, the judge immediately substantially increased my child support per the new Massachusetts guide lines but didn't use any of my income over $250,000 to order more child support. The judge said that would be alimony in disguise.  The judge also said that attorney's fees might be awarded to my ex based on what it cost me for fees. 

What do you think will be the end result?

D.N., Newbury

A.    Because the alimony provision in your agreement survived entry of the judgment as an independent contract, the court cannot increase or decrease the payment. So alimony should not change no matter how much more you're earning from inheritance and other income.

The child support guidelines establish a minimum presumptive amount that must be paid.  And the court understood your payments were enough to meet the kids' needs.

There should be no attorney fee award to your ex-wife because she didn't raise anything novel and she already got all the relief she's likely to get.  The game is over.

Case law holds the amount of your fees does not justify an award to your ex in the same amount.  Instead any such award must be based on the judge's use of conservative factors. 

            Eventually, if not sooner, she should figure out that her paying more legal fees is like throwing $10,000 one dollar bills off the top of the Prudential Building and then racing down stairs to the street to pick up as may bills as she can find.  Whatever she finds is, well, found money.