Question: My husband and I divorced 16 years ago about three years after I was involved in a serious accident that prevented me from having children. I have been disabled since that time, receive Social Security Disability, and am covered by Medicare. My husband had a good job with a large company and earned his master’s degree while we were married. We agreed in court papers that he would transfer our house to me, pay me $1,600 in monthly alimony, divide our bank accounts and his earned retirement, and pay my medical expenses not covered by Medicare.

Ten years ago, he remarried – this time to a physician, and after 23 years on the job, he wrote me last month, telling me that he had decided to take early retirement at age 47 in order to, as he put it, “fulfill his calling” as a minister. He asked that I agree to reduce my payment to $750 per month. I became frantic because I have difficulty making ends meet due to increased costs of living and no increase in my support over the past 16 years. He now threatens to sue me. I don’t want to spend money I don’t have on a lawyer when I need it to survive if he is going to be successful in reducing my alimony.

Answer: Obviously, until all facts are put before a judge, no one will know what the future will hold and, certainly, no one can guarantee you a result. However, we believe that it is reasonable to assume that a court will take into consideration the facts and apply them to the law of your state of residence.

In doing so, we also assume that the court will take into consideration that your former husband’s decision to reenter school was 1) not a forced retirement, and 2) was not for the purpose of increasing his future income. Obviously, with his physician wife’s income behind him, he believes that he can, as he puts it, “fulfill his calling” and earn less income, thus denying you the ability to increase your shrinking alimony dollars in the future. Simply put, this is not your “run of the mill” retirement situation: Here, a 47 year old man is, by choice, leaving lucrative, long-term employment, knowing he has an ongoing obligation to you, in order to seek out a less remunerative career.

Since the courts of most states are mandated to consider all income and assets available to the litigants, it would appear to us that: 1) your ex may have assets from which he can satisfy your alimony award; 2) his wife’s income is relevant to show how much of his own earnings are used to support his standard of living; and 3) his choice to leave remunerative employment at your expense is not appropriate.

In a word, based on the facts that you have provided, despite his desires, he should be determined to be “underemployed” in the eyes of the court. William Blackstone, in his Commentaries on the Laws of England, may have stated it best back in the 18th century when he quoted the rule of equity that “. . . a man must be just, before he is permitted to be generous.”