Q. I was married for fourteen years and divorced in 2010 when my children were 8, 4 and 3. I currently pay child support and alimony to my Ex-wife. My Ex is a professional who now earns well into the six figures and owns two mortgage free homes. When we divorced she was home with our children which we agreed she would do until they were all in full-time school.
Unfortunately, I signed an agreement with a surviving alimony clause. I know alimony reform happened after our divorce. Is there any way I can revisit what I pay her each month? She is living beyond the lifestyle we had in the marriage and it just doesn’t seem fair that I have to keep paying alimony when she earns so much money. I need to try to save for college but cannot do so as long as I pay alimony.
- While it may not be fair, the alternative is worse. The only way to modify a survived alimony agreement is to prove “countervailing equities.” There is no hard-fast definition of countervailing equities, rather there are examples in the case law. Think of it along the lines of if it walks like a duck and quacks like duck – it is indeed a countervailing equity. Bottom line, if something so unexpected were to happen to you that you were at risk of financial ruin, you might be able to get relief from your obligation. The alimony reform act did nothing to undo survived alimony agreements because the assumption was that people understood the pros and cons of entering into such an agreement before doing so and should remain bound to their bargains.
Also, keep in mind, because your alimony obligation is so old, you still get a tax deduction for continuing to pay – something people entering into agreements these days do not get.
This does not mean you have no options here. You can absolutely modify child support. It sounds like she was making little to no income at the time of the divorce and is now making six figures plus receiving alimony. All of that income needs to be included in the child support guidelines calculator to figure out the proper payment. Also, when you complete the child support guidelines worksheet, make sure you deduct from your income the alimony you pay to your Ex before listing your weekly income. Only then will the guidelines spit out the right number.
Also, when you go to modify child support, look for an order on contributions to college. It sounds like she has more than enough in the way of income and assets to contribute at least half if not more to college for your kids. If you have to keep paying her alimony, you might get a judge to order her to pay a higher percentage of college. If she doesn’t like that, you can always ask her to agree to modify alimony so you can pay more for college.