gigi
Platinum
Reged: 11/06/06
Posts: 4260
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You're going to have an almost impossible time getting "non-modifiable" alimony terminated. Even if she gets married again, wins the lottery, etc. It's going to be ... he agreed to this back then so what's his beef now? Presumeably, he believed this was a good deal for him at the time or he'd not have signed off on it and the judge is going to say that job losses & such asre reasonably forseeable so he can't let this buyer's remorse get him out of this part of his deal. Also, they'll say that she agreed to the property settlement and other issues with the understanding that THIS was the alimony arrangement and for him to try to change that when he's not willing to go back and re-negotiate to give her more property is unreasonable.
Basically, with VERY few exceptions, you're going to find that Non-modifiable really means non-modifiable.
Let us know if the judge agrees that your husband's situation is one of the exceptions.
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Kryptonite
New
Reged: 04/28/08
Posts: 9
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Thanks! I do know the extent of his alimony will terminate upon her remarrying or if my husband or her die. As far as the situation where he would be unable to pay, when the fire destroyed the business I wouldn't see why a judge would say that is a forseeable situation. There was a dramatic and substantial change in his income, to the point where he cannot just jump back into another job making the same as what he was.
I know that it is a long shot, but it is worth a try. We already told her that trading property in lieu of alimony WOULD not be done. I am not forfeitting my property in lieu of alimony payments since the courts would have no record of it--- and I wouldn't put it passed her to just take us to court anyway. I will send updates as I see them. We are waiting for our 2007 returns to come in so I can file the paperwork.
We don't want it terminated, just adjusted. $500.00 a month is extremely steep for us right now because we can barely take care of the bills as they are now on my own salary. Ideally, we would like to adjust it to $100.00 a month for a while-- (and believe, she's not hurting for the money)
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theanswerguy
Platinum
Reged: 04/12/07
Posts: 1995
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Even non-modifiable alimony can be modified under extreme enough circumstances .
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Never let your sense of morals get in the way of doing what's right. Isaac Asimov
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Kryptonite
New
Reged: 04/28/08
Posts: 9
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That's the impression I had. But you have to have EXTREME circumstances, and I can't think of anything else that could be worse than the loss of his business other than him being killed in it or becoming severely mamed.
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allthumbs
Platinum
Reged: 07/12/07
Posts: 245
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This is my problem with non-modifiable support awards. Life happens, and then what? In CA, the court is required to consider many factors, with co-habitation being one of them. Plus, the court retains jurisdiction over marriages of long term; meaning either party can return to the court to ask for a change of order based on a change in circumstances. I say, file a motion to have the order changed. What's the worst that could happen? The judge says no, then you'd be right where you are now anyway.
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gigi
Platinum
Reged: 11/06/06
Posts: 4260
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I knew there was a case about it so I asked around. Here is the url.
http://www.supreme.state.az.us/opin/pdf2007/cv070019pr.pdf
Basically, in 2007, the supreme court in Arizona (your state?) says that for arizona, where people say in thier decree that it's non-modifiable, then it's non-modifiable. In this case, Waldren entered into an agreement for 5 years worth of alimony at $1000 per month. A year later he became totally disabled and unable to work, was getting $1300 per month in disability payments. He asked for relief from judgment on the basis that at this point the requirement of making him pay a thousand per month for the next 5 years was horrible. The court said basically that he made this agreement, signed that it was non-modifiable, and so he's stuck with it.
I'll be curious to know if you can change that.
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gigi
Platinum
Reged: 11/06/06
Posts: 4260
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I understand that this is the problem with non-modifiable awards, that life happens. But the REAL problem is NOT with the courts or the laws. NON-MODIFIABLE, in almost every circumstance where it's REALLY non-modifiable, is something that was AGREED upon by the person paying (as well as the person receiving).
Of all the things you're thinking and being careful about at the time of the divorce, it's CRAZY to not think and be careful about the term "non-modifiable". You HAVE to knwo that the term means NON modifiable! It means that you have to take the chance that if you earn less in the future that you'll still have to pay it. You have to take the chance that if you lose your job, your health, yoru money, that you'll STILL have to pay it. What most people are thinking of when they agree to non-modifiable support is that they believe their earning capacity will go up so high that their ex will want to come back and get MORE... so they're all happy to make it non-modifiable in the gamble that they'll get more and their ex won't be able to get it.
But it IS a gamble and they knwo it at the time they sign it that it's a gamble.
Heck, just like the gamble of taking on a mortgage... maybe an adjustible rate mortgage with the gamble that you'll sell or be able to find a fixed rate or better rate once the adjustible rate gets out of reach... or maybe the gamble that your income will increase with the adjustments.
Or a better example is if you buy a car with a loan, get the car, crash the car... loan doesn't go away. In Waldren's case, his car payment was $1000 per month for 5 years. Car is gone. Job is gone. Payment doesn't disappear. Whoops. Bad contract. Bad bet. It happens. It's not nice, but sometimes, we lose when we make a contract like this.
We spend our lives getting into contracts based upon the gamble that we'll be able to fulfill the contracts as time goes on. That does not mean that we can ever change the contracts if we can NOT fulfill their terms later on.
I think everyone needs to be VERY careful about putting "non-modifiable" terms into their decrees. "modifiable only in case of death, disability, remarriage" may be more appropriate.
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KGrow
Platinum
Reged: 01/27/06
Posts: 2923
Loc: Colorado
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Don't throw the baby out with the bathwater. You can write provisions for relief into a non-modifiable agreement. Mine had a provision affording me a temporarily reduced monthly payment in the event that I lost my job.
The problem with a modifiable agreement is that it leaves couples entangled. Instead of dealing with their problems independently, they will continue to pull each others strings through the courts.
If you feel need a safety net, buy yourself some insurance.
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gigi
Platinum
Reged: 11/06/06
Posts: 4260
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Yeah, I guess that would have helped the original poster's husband, to buy insurance or find ways to modify it in case of job loss or something... but without that.... I hate to say it, I think his case is a loser.
Stuff like this is why people want a lawyer... they need someone to explain to them the problem of PERMANENTLY non-modifiable alimony versus the ongoing, nearly always modifiable version, and whether or not they really need to protect themselves from stuff like job loss or businesses being destroyed or whatever.
Unfortunately, it's too often something that people are just so happy they've come to an agreement on the numbers, they don't look at the finer points... the little details that will bite them in the end. Maybe they're afraid to try to negotiate the little details. Maybe they're not willing to pay thier lawyers the extra money it'll take to go through all this stuff that seems so useless today and not highly likely anyways... and then when it comes up that the 1 in a 100 chance happens and they lose thier business, suddenly they're faced with the reality that maybe they should have taken a few more hours of lawyer time to hash out this detail or that.
You know, we've discussed it before... with regard to parenting plans... people will draft really loose agreements on parenting, and then when times get tough they each decide to interpret it their own way, using it to mess with each otehr. They leave terms intentionally open, thinking that since they can't agree on stuff, maybe it's best if they leave the details of the STUFF out of the agreement, and hoping that it'll never become an issue.
AND THEN it becomes an issue.
KGrow, it sounds like your lawyer was thinking of all the possibilities and protected you a whole lot better than most people! I feel sorry for this guy who lost his business, but it soudns like he made an agreement and he's probably not going to be able to get out of it.
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