Question: My first wife and I were married for only two years and had no children. She was 22 and I was 27 when we divorced. I had begun working for a public utility, and she had just completed college and was doing her practice teaching. I was so anxious to get out of the relationship that I would have signed anything – and I did.

Now I am so financially strapped that I need to find a way out of it or I will go belly up. I did not have a lawyer the first time around but, being a real wise guy, I didn’t think I needed one. So I negotiated to pay my then-wife $250 per month alimony until she remarried or died or I died. The kicker was that I did not want her coming back for more money because I knew that I would be earning more, so I agreed to increase the $250 by five percent per year so long as she could not take me back to court to get any more, and she agreed so long as I could not reduce her benefit. So she agreed, I agreed, and the judge blessed our agreement. That was 32 years ago!
Who would have thought that a pretty 22 year-old teacher would never remarry? And who would have ever figured that the $250 per month I was paying would, after 32 years, have escalated to nearly $1,200 monthly?

So here I am at nearly 60 years of age, getting ready to face forced retirement because of a disability, a wife (we married 22 years ago), two children in college, and a monthly alimony payment that will be nearly $1,600 when I reach age 65. I have tried to talk to my ex, have begged, and have cried. But she says that she has planned her retirement around my payments to her. I have talked to several lawyers who told me what I already knew: “You should not have done that.” Is there anything I can do? Two friends of mine told me to write you, and I would appreciate any ray of hope you can give me.

Answer: At the time of your divorce, the court apparently approved an agreement between you and your former wife as an order of the court. You and she agreed that the amount you were paying her would not be modified – either up or down – by any change of condition based on your agreeing to increase the base amount each year by a five percent interest factor.
While we have not read your agreement, it appears there are a couple of positions you may want to take:

First, depending on the actual reading of your agreement, there may be more than one interpretation of the manner in which you are required to pay the five percent increases.

While your calculations assume compound interest, it may well be that the literal meaning of your bargain is that you would add five percent of the base payment of $250 ($12.50) to the payments each year. Based on these calculations, and we certainly stand to be corrected, your payment may well be just $650 per month now, rather than $1,200, a difference of $550 monthly. If this is the case, you may have overpaid your former wife by more than $114,000 over the past 32 years.
On the other hand, while Courts generally don’t disturb awards of alimony that are
”non-modifiable” (because you entered into a bad deal and should not be allowed to take an inconsistent position today), your former wife’s remedy for enforcement – civil contempt – has to do with your willful failure to comply with the court order. If your refusal to comply is not willful but based on circumstances beyond your control, the Court has the authority to enforce a lesser monthly payment.

Bottom Line: Agreeing to “non-modifiable” payments – or those with limited modifiability – is not smart for a variety of reasons, mainly because none of us knows what the future will hold. And, acting as your own lawyer in a marital dispute is not worth the immediate savings.