Question: My husband and I were divorced last year after nearly 10 years of marriage. At that time, I worked for state government and had 17 years of service. Since my income was just a little less than his, my lawyer told me there was no sense in trying to get alimony, and I agreed. I did get a rollover of $75,000 from his 401 (k) and also the house, which had equity of $35,000. I kept my deferred compensation of $40,000.

Ten months later, at age 45, I am unemployed due to state budget cutbacks. I know that I can’t keep up the house payments and also pay for health insurance. Can I go back to court to get support from my ex? Where can I go for help?

Answer: Breaking up is always hard to do, but especially so when devastating financial circumstances, such as job loss or health problems, crop up after the final decree.

The purpose of spousal maintenance – alimony – is to attempt to rectify, as reasonably as possible, any economic imbalance in earning capacity and standard of living based on the facts of each situation. In addition to other factors applied by each state, some of the financial considerations are: 1) your respective financial conditions at the time of the divorce, including your incomes, and 2) the extent of your respective resources. To be modifiable, alimony must be at least reserved at the time of the final decree, which apparently was not done in your situation -- correctly so, based on the economics at that time.

Without fraud that rises to the level of allowing you to reopen a judgment – which does not appear to be the case here -- we don’t think you’ll be successful going back to court because your ex-husband is certainly not an insurer for your financial future.

That said, you must now deal within your own financial sphere, and your remedies may well include unemployment benefits coupled with financial planning strategies that, while helping you through the short haul, may be dangerous to your financial future.

For example, your need for supplemental income prior to reaching age 59-½ may be offset by using your IRA to provide you with penalty-free, substantially equal payments. Ordinarily, withdrawals prior to age 59-½ will result in a 10 percent penalty plus ordinary income taxes; however, substantially equal payments are an exception. But be forewarned: the rules are pretty inflexible and require the assistance of qualified tax advisors. Generally, you must take these distributions for five years or until you reach 59-½, whichever amount will be greater. If you mess up, you will be assessed the 10 percent penalty in addition to interest.

Of course, by taking distributions from your IRA, you will be depleting your future retirement. The IRS now allows some flexibility in changing the method of distribution, but this, too, requires qualified tax assistance before trying it. You can even split your IRAs and take distributions from one while allowing the other to grow. You can’t use your IRA as collateral for a loan, but you can take out money without penalty for a first-time home purchase, disability, certain medical expenses, and higher education. We suggest that you look at some calculators that can be found at 72T and CCH, but remember not to act without good, sound financial and tax advice.

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