HOW TO AVOID DOUBLE DIPPING

Q: Five years ago, my wife and I divorced. As part of our property settlement, she wanted -- and I agreed to give her -- a share of my pension at my retirement. I also agreed to pay her alimony. After I retired last year, I began drawing my retirement pay - a lesser amount due to the fact that she was to receive a survivor annuity. Because I was short of money, when a good-paying job came available, I took it. Now my wife has brought a suit to increase the amount I am paying her as alimony. She and her lawyer say that the monthly retirement pay I now receive -- which is less than it would have been if I had not given her a share -- should be added to my new salary when considering my ability to pay her more alimony. I don't think my retirement should be counted twice. My lawyer says that this is "new ground" and that it may end up in an appeal. What do you think?

A: Commonly called "double dipping," this tactic is not unusual in matrimonial cases. Although you should always follow the advice of your lawyer, it appears to us that if your pension was previously divided with the other assets, your ex-wife would be unjustly enriched if she was allowed to count the retirement twice -- once as an asset and again as part of your ability to pay alimony.

It seems to us that when this type of agreement is made, a clause should have been included that clarified this point. For example: "The husband's retirement has been divided as an asset of the marital estate and therefore neither his share of the fund nor any income derived by the husband from that fund shall be considered in any future action to increase alimony or for any other reason." With the wife's name on the line agreeing to this, we believe that a situation such as yours is less likely to occur.

Because changes in economic status and ambiguities are often the causes of litigation after divorce, those faced with similar situations should make every effort to try to avoid ambiguities in agreements by stating intentions clearly. Otherwise, you will become the tractors that are used to plow "new ground."

Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is distributed nationally by Knight Ridder Tribune News Service and can be found on the Internet at http://www.flyingsolo.com.

Please send your questions to P.O.Box 11704, Columbia, S.C. 29211 or send your questions by email to janwarner@flyingsolo.com.