How To Avoid Double-Dipping From Pensions At Divorce

DOUBLE-DIPPING AT DIVORCE

Q: Three years ago, my wife and I divorced. As part of our property settlement agreement, she wanted and received a share of my retirement. I also agreed to pay her alimony.

I retired last year and began drawing my retirement pay. Then a good-paying job came available and I took it. Now she 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: This tactic, commonly called "double dipping," 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 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.

Because changes in economic status and ambiguities are often the causes of litigation after divorce, folks like you often become the tractors that are used to plow new land. For all of you out there who are faced with similar situations, try to avoid ambiguity by stating clearly your intentions in your agreements.

It seems that prudence and an abundance of precaution would dictate that when such an agreement is made, a clause should be included that clarifies this point: "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, a situation such as yours is less likely to occur.