Question: My husband and I have been literally fighting about our 26 year marriage in divorce court for nearly two years. During this time, the values of our assets are different than they were when we got into this mess. For example, the house I am living in – and which I want – has increased in value by nearly 20 percent while my husband’s retirement and our investments have been reduced pretty significantly due to the recent downturn in the stock market. At the same time, my husband’s income has increased. My lawyer told me going in that our assets would be valued as of the time I filed the suit for divorce, but now my husband is asking the judge to use present value in making the division, but says that his increase in income should not be considered because I had nothing to do with it. My lawyer now says it’s up to the judge. We hired a financial planner to project my needs based on the date of filing values. How can I plan for the future when the rules change every time there is a blip on the economic radar?

Answer: Because of the time it takes to resolve many matrimonial cases today, courts are seeing more and more changes in property values and income during the proceedings. In fairness, these issues must be dealt with in some fashion, but they further increase the length of the litigation.

Arguments differ concerning changes in income and asset values: Increases in income during the separation are often attributed to the separate efforts of the earning spouse, while increases – or decreases – in asset values are attributed to changes in market conditions that are not brought about by either party.

Based upon the definition of “marital property” in some states, it has been argued that the increase in value of a spouse's assets during the separation should not be considered marital property because the marriage is considered to have broken down at either the date of separation or the date of filing.

Bottom Line: The judge’s decision should be based on the law of your state and equitable principles; however, the fact that these types of problems are coming to the forefront tell us that it is better to conclude litigation as quickly as possible to avoid the expense – and the risk – of prolonged proceedings.

Question: My husband and I settled our divorce case 15 years ago, and he agreed to pay me $500 per month as alimony until I died or remarried. In return, I agreed never to ask for an increase. He recently retired at age 66 and now wants to cut of my support when I need it most. My lawyer tells me that my husband has a good case. If we made a deal and if I did not try to get more money all these years, why should I have to suffer economically now when I need the money the most? He is in better health than I am.

Answer: Some courts have found that while a spouse can not retire prematurely to avoid paying his or her support obligation, that spouse should not be required to work beyond retirement age to pay support.

That said, your argument is that he still has the ability to work and to pay. In addition, your agreement contains what may be very important wording: You agreed not to seek increases in support in return for your ex-husband’s agreement not to terminate or reduce support.

It appears to us that because you gave up an important right – to seek increases over the years, your husband may be bound to continue paying from current income or from assets.

Either way, your situation points up the uncertainty of agreements and court orders today.