Minimize or Avoid Alimony PaymentsCORNERSTONE – The Ultimate Guyvorce Guide
Note: This article is for educational purposes only, and not intended as legal advice. The laws vary in each jurisdiction and readers should seek professional advice from a licensed attorney in the appropriate state.
Alimony is the four-letter word of divorce jargon. It’s the fifth horseman and the 11th plague. The Ancient Babylonian practice is said to have originated in 1754 BC as part of The Hammurabi Code. Here in the second millennium, AD, in the land of feminism and equality, there really isn’t much of a need for it.
So why is it still around, and how can you work to minimize or avoid alimony — eliminating it from your financial responsibilities?
Why Is Alimony Still Around?
The short answer is that many of our laws grew out of the Hammurabi Code. Alimony is just one of many that have survived several millennia.
The actual text reads something like this:
A man has a duty to support his wife until their marriage ends. He could have left his wife, but would continue, by law, to provide her with financial support. Because marriage does not end until death, payments continue until one of them dies.
In other words, because divorce wasn’t allowed, one would forever be responsible for his spouse.
How to Minimize or Avoid Alimony Payments
There are a few ways to minimize or avoid alimony responsibilities. They vary from taking pre-emptive action to prevent such a situation from occurring in the first place to petitioning the court system to reduce the size of the obligation in the event of hardship.
Like most unpleasantries, prevention is the best protection! But if alimony is ingrained into our society and hardwired into the divorce process, isn’t paying it an inevitable part of life after divorce?
Before ever taking the plunge into marriage, sit your betrothed down for a serious chat. Do some planning, of sorts, for the unlikely event you’ll end up divorced.
Encourage a dual-income household by empowering your fianceé to find her own source of income. Establish a productive rhythm in your home before you even share one.
Not only will you both have the ability to support yourselves independently in the event of a divorce, but independence fuels positive self-worth.
Outcomes of divorce are mainly driven by patterns in the marriage. Work to create a productive, financially independent pattern in yours ahead of the big day.
A prenuptial agreement will help you iron out the details and enter into your union with good expectations. We recently published a post by one of our resident experts, Karen Covy, a divorce lawyer. She has a few great suggestion related to the inclusion of alimony details when the time comes to write up your agreement.
Minimizing Alimony by Agreement
To keep your former spouse in the lifestyle to which she became accustomed during your marriage, you’ll likely have to pay alimony.
But if since the divorce was finalized something happened that affected your ability to earn enough money to cover your alimony payments, or if you don’t think your ex needs the money anymore, you can have your alimony reduced or terminated altogether by filing a motion for modification of the divorce decree.
Here’s how you do that:
1. Check your divorce decree for potential circumstances in which alimony will automatically terminate or be reduced.
For example, your decree might specify that alimony payments will end if you lose your job. If it happens, payments should automatically terminate according to the decree.
Also check changes in circumstances on your former spouse’s side as well. There may be a cohabitation restriction that would cause payments to end if she should move in with a romantic partner
2. If you and your ex are on good terms, talk to her about the change in circumstances.
If a number of years have passed since your divorce, she may be less dependent on your alimony payments than she was right off the bat. Even if your decree doesn’t allow for changes in circumstances, it might be something significant enough that she would be willing to agree to the change. If she agrees, you’ll need to have the new agreement approved by a judge to it’s legally enforceable.
3. Draft an amended agreement.
Outline the new terms you and she have agreed on. It should identify you and your ex-spouse and should mention the original divorce decree and the date it was entered. State that you are both agreeing to a modification of the terms of the original. Cite the same case number and same caption as your original divorce action. Your court clerk may have a template form available online or in person.
4. You and your ex must sign the motion.
Make sure you do it in front of a notary and have it notarized. Attach a copy of your original divorce decree and make several copies of the entire packet so you each have copies for your records.
5. File your motion in court.
You’ll have to pay a court filing fee to do this. You might also need to include a draft agreed order for the judge to sign. Be sure to ask the clerk when you file if you’ll need to do this.
6. Go to court!
It’s not required everywhere. But in some jurisdictions, you’ll have to appear before a judge for a signed order. Other judges will ask you to show up for a brief hearing. If you’re asked to come in for a hearing, the judge will question you and your ex about the circumstances leading up to the changes and whether or not you both agree to the new reduced (or eliminated) payment structure. In most cases, however, the judge will sign off on an agreed order without a hearing, and you’ll be notified by the court clerk when your order is ready.
7. Make plenty of copies!
Copy the judge’s signed order plenty of times to be sure you have enough around for any interested parties.
Minimizing Alimony by Court Order
It’s always better if you and your ex are on good terms. But sometimes, it just can’t be helped. In those cases you’ll have to go about the process differently.
1. Hire an attorney.
Contested motions for modification can get every bit as elaborate and ugly as the original divorce proceedings. If you’re in this predicament, you can bet your ex is lawyering-up, too. If you’re in a bind and can’t afford to pay an attorney to handle the entire proceeding, at least hire one for a few hours to provide you with an accurate review of your drafted motion. If it goes that far, you might just need an attorney to handle complicated issues and lend some legal expertise during trial and discovery if your ex intends to fight the motion.
2. Look for some of the circumstances we talked about earlier as reasons to modify or terminate alimony payments in the original divorce decree.
3. Draft your motion to modify your decree.
It’ll have the same case number and caption as the original. If you want to modify your alimony payments and your ex won’t agree to the change, you’ll need to file a motion with the court to demonstrate that substantial changes justify an adjustment in alimony payments.
Include all required documentation.
4. Sign your motion in front of a notary public.
If you have an attorney, he or she will take care of witnessing your signature. Once signed and notarized, attach a copy of your original divorce decree and all other exhibits you’re going to submit as evidence of your change in circumstances. Make copies!
5. File your motion.
Your attorney, if you’ve retained one, will have this part taken care of on your behalf.
6. Serve your ex-spouse.
Once filed in the court’s system, serve your ex-spouse with a copy along with a notice of hearing. You can either opt to serve her yourself or hire a legal process server to handle it for you.
7. Once served, your ex has an allotted amount of time with which to file a response.
If she doesn’t file a response within that time, you can request a default judgement in your favor. While it’s pending, you’ll still have to make your regular alimony payments, or at least make partial payments in good faith if you can. Even if the judge rules in your favor (or you win your case by default), it will only apply to future payments. Past due payments, are still past due.
8. Gather your evidence.
At your hearing you’ll have to prove your case. Ahead of the hearing, you’ll have time to conduct discovery. During this period, you should request copies of any documents you need from your ex. For example, if you heard your ex recently got a promotion at work and no longer needs your alimony payments, you can request documents verifying her earnings.
Courts weigh your ability to pay against your ex-spouse’s financial needs. If your ability to pay has decreased only slightly, but her need has stayed the same or increased, your request might be denied. If you’ve filed your motion because you lost your job, keep records of your job searches so the judge knows you’re actively looking for work and didn’t just quit your job to avoid paying alimony.
9. Show up to your hearing.
Organize your documents the night before so you’ll have them ready immediately without having to shuffle through your mess of papers. You filed the motion, so you’ll have the first turn to speak. Keep your statements brief. And stick to the facts. (Practice the night before.)
10. Once the judge signs the order, get loads of copies made!
You never know when you might need your new court order.
Some Other Things to Consider
Alimony is an antiquated practice turned modern-day law. It’s a way to make one spouse continually responsible for the other even when they are no longer spouses. Much of the Hammurabi Code has been abandoned and removed from our legal system. When the practice of alimony will join its ilk is currently unclear.
Recently, several, more progressive states have made changes to their alimony laws to restrict the circumstances under which a spouse qualifies for spousal support. Other laws restrict further to allow only enough time for the recipient to get back on his or her feet.
If at the end of that term the recipient still requires support, a motion to extend the period must be filed in much the same process described above.
Alimony Payments Are Tax Deductible
- The payer receives a deduction
- The recipient must claim alimony payments as income
- Payments must be made in cash
- Exchanging property is not allowed
Some States Allow for Permanent, Lifelong Alimony
States like Florida, West Virginia, and New Jersey allow a judge to order a permanent financial order of support from one spouse to another. Whether or not a paying party can end permanent alimony depends largely on why the alimony was awarded.
Divorced with kids
Divorced, no kids