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Are Alimony Decrees Modifiable?
Jan L. Warner & Jan Collins

Question: At the time of our divorce after ten years of marriage, my wife was unemployed and needed support – even though she was healthy and capable of working. She promised to go back to school and get a job. Against my better judgment, I signed an agreement – prepared by my lawyer -- to pay her $20,000 per year until she died or remarried or until I died. I also agreed to increase or decrease the alimony every two years based on the cost of living index, and not to modify the agreement unless we both consented in writing. The judge signed an order approving the agreement when we divorced. Now, seven years later, I am paying nearly $25,000 per year even though my ex-wife has been seeing another man for three years. I think this guy is giving her money because she is still not working. >From what I can find out, they spend every weekend together and see each other three nights a week, either at her house (the one she received in the divorce settlement) or his. I also think they are not getting married so she can continue getting my money. I want to cut off my alimony payments based on a court decision in our state that says a woman who lives with another man can not get support, but my lawyer tells me that it will be an uphill struggle, and I will probably lose. I even thought about going bankrupt, but my lawyer says that this would not help. I don’t want to waste money on a lawsuit, but I can’t understand why, under these facts, her support can not be stopped?
Answer: Although we have not read your agreement and certainly don’t know all of the facts, from what you describe, it appears that you may have committed yourself to an “life sentence of alimony without the possibility of parole”, regardless of the judicial decisions in your state. When a husband and wife sign an agreement containing the non-modifiability language you describe, making modifications is difficult, if not impossible.
If you decide to bring an action to terminate support, you will be required to show a substantial change of conditions which, in your situation, would be 1) her cohabitation with another man and 2) her either supporting him or him supporting her. Even if she admits cohabitation, supporting him, him supporting her, and not marrying in order to continue receiving your money each month, we believe you may still have a problem.
“Alimony” is generally defined as a sum or money that will provide for a former spouse as a substitute for the support which was received during the marriage. Generally, alimony is not awarded to promote and sustain a live-in arrangement between the supported former spouse and a third party. Otherwise, a cohabitant would be rewarded for not remarrying, and a paying spouse would be penalized. Since each state has an interest in promoting marriage and discouraging meretricious relationships, some courts have ruled that it would be inequitable to allow a former spouse who is involved in an illicit relationship to benefit from alimony payments at the expense of the supporting ex-spouse by the simply choosing not to marry.
However, in your situation, it appears that your former wife’s right to receive on-going support was created by a non-modifiable contract between you and her which was given a Court’s
stamp of approval and was not set by a court adjudication. You and she voluntarily agreed that her alimony could be terminated only upon the occurrence of one of three specified events – her death, her remarriage, or your death – and that the award could not be changed unless you and she agreed to the change in writing. Had you and she intended that her subsequent cohabitation would terminate her support, you could have included that contingency in your agreement. But you did not.

SoloFact: Unless there is a good reason, don’t enter into agreements that vary from the established law of your state. If you do, you may face unpleasant circumstances later.

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