Alimony And Divorce: An Attorneys Perspective

The Wall Street Journal recently published an article by Jennifer Levitz titled: The New Art Of Alimony.  The article gives some very scary situations in which, years after a divorce is finalized, one partner comes back seeking maintenance or alimony simply because they have fallen on hard times. In some of these cases the ex-partner who is ordered to pay is now unable to retire or their new spouse must find work in order to pay the ex. 

We spoke to Frank Murphy, J.D. of Cordell & Cordell, P.C., to find out about alimony and maintenance as seen in the state of Missouri where he practices.

DadsDivorce: Are these cases where an ex-partner, sometimes decades after a divorce, anomalies or are they going to become more normal based on these judges’ decisions?

Murphy: It is not common for a spouse to ask for an increase in support.  I have never heard of a salutation where a spouse who has waived maintenance can come back and ask for it.  This must be something peculiar to Massachusetts law.

DadsDivorce: Is there anything you would advise a divorcing client to do to be sure that their case is truly over so that years later they aren’t forced to pay these types of after-the-fact maintenance?

Murphy: In Missouri, once you waive maintenance, it is a dead issue that can never be raised again in the future.  Getting that waiver is at times easier said than done depending on the facts of the case.

DadsDivorce: With the changes of the past several decades in which women have moved into the workforce, have we seen alimony or maintenance judgments decrease?

Murphy: There has been some decrease, but not in line with what it should be based on the number of two income households.

DadsDivorce: Could this seeking of maintenance years after divorce, even after clearly agreeing that no maintenance would be paid, be a new trend?

Murphy: I doubt it.  Again, it can’t happen in Missouri.  There must be something peculiar to Massachusetts law that allows for this event to occur.

DadsDivorce: Have Cordell & Cordell, P.C. seen any spike in clients or clients’ ex-partners wanting to modify alimony or maintenance arrangements?

Murphy: Not that I can see.

DadsDivorce: Are there hidden loopholes in most divorce decrees that welcome this kind of modification?

Murphy: If you don’t waive maintenance in a divorce or if you modify maintenance to zero, the issue is still available for future modifications.

DadsDivorce: What about when the shoe is on the other foot (and perhaps this is much more common) and a client is asking for maintenance payments to be ceased or reduced because the recipient’s situation has changed significantly (such as cohabitation). The article mentions a case where the recipient was living with a man for the past twenty years and still receiving $3400 per month.  In the story, the judge ruled that not only should the payor not have to continue paying, but that the recipient should repay $151,000 that she had received since his earlier motion to modify.  Have we seen any cases like this? Is this something that we are routinely asked to address?

Murphy: Court’s can reduce or terminate modifiable maintenance if the recipient is cohabitating with someone who is significantly contributing to their support.  The ability to make such a reduction or termination retroactive is limited to the service date of the Motion to Modify.  The Court cannot reach back any further in Missouri

DadsDivorce: Our readers might wonder how often the issue of whether a recipient is involved in a romantic relationship with another adult come into play, especially when the two are cohabitating?

Murphy: It comes up a lot.  The key is to prove that the cohabitant is contributing financially to the support of the recipient spouse.

DadsDivorce: The article mentions that under Massachusetts law “judges who want to keep a person off public services can turn to the ex-spouse.” Do we ever deal with cases like this where an ex or perhaps an adult child is in danger of going on public assistance and an ex-spouse or parent is ordered to take on fiduciary duties?

Murphy: I am not aware of any case where the State has gotten involved on behalf of an ex-spouse for maintenance.  Now children are different.  That does happen because the financial responsibility for a child is first that of the parent before the state.

We at DadsDivorce.com want to know: what are your thoughts on fair or unfair alimony or maintenance that you have experienced or are experiencing right now?

For more information check out the Tom Ashbrook, On Point  Radio Podcast About Alimony