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Q: Can alimony be reinstated after its termination due to cohabitation?
- A: This depends entirely on the laws in your area and your specific order. In most states, once alimony has been terminated it can never be reinstated. And, some courts now order alimony termination provisions that include "cohabitation with someone of the opposite sex." This provision is also frequently used when divorce cases are settled by agreement.
The definition of "cohabitation" varies widely in different locations. Some courts have held that "cohabitation" means people living together and sharing living expenses. Other courts require a marital, conjugal relationship.
Some courts have ruled that alimony may be reinstated at the end of the cohabitation period. Other states have held that a termination of the obligation prevents the obligation from being reinstated.
Q: Can I revise how my settlement agreement characterizes my payment for tax purposes?
- A: This depends on the laws in your area.
Generally, alimony is tax deductible for the person paying the alimony and taxable income to the person receiving it. If you are ordered to make the house payment on the home your ex-wife is living in, that is not considered an alimony payment. It's not deductible for you or taxable to her.
A court might modify the order to include the same payment in an alimony payment to her, thereby making the payment tax deductible to you and taxable income to her. Normally, the court can't modify your property settlement unless your ex agrees or there's a provision in your settlement agreement or state law that allows the court to modify the agreement.
Q: Can my ex-wife collect back alimony when she's done nothing about my non-payment for several years?
- A: There is a definite possibility she can still collect. The alimony obligation is a legal right of the ex-wife, and you know you are obligated to pay the amounts.
You may, however, have a defense called "laches" (pronounced "latches"), which can be used against someone who has failed to assert a right to alimony for an unreasonable and unexplained period of time under circumstances that are prejudicial to the other party.
The states differ on whether or not this defense is available, and the specific facts of each case can also defeat the defense. For starters, you know about the obligation and your failure to pay. Under those circumstances, many courts won't let laches succeed.
Q: Does my ex-husband have to continue to pay alimony if I'm now living with another man?
- A: The answer to your question will depend on the laws in your state on terminating alimony and the exact wording of your divorce settlement agreement. The alimony order may provide a term which automatically terminates the obligation if you cohabitate with another man. Even if your order doesn't include such language, state law might include the provision. This is a very common termination provision. However, "cohabitation" is defined by state law. Some states only require that the couple live together. Others will require that the other person actually support the person receiving the alimony.
Q: My ex-husband is now making quite a bit more money than he did when we divorced. Can I have my alimony increased?
- A: This will depend entirely on the laws in your state and your specific order.
Alimony is usually awarded based on events that happened during the marriage -- like the wife staying home to raise the children, thereby sacrificing her career prospects to a great extent. The events that happen to the payor spouse after the divorce are usually irrelevant to the alimony obligation.
On the other hand, however, there is certainly something to be said for the idea that the wife's sacrifices during the marriage continue to contribute to the success that the ex-husband is now enjoying. In states that follow this theory, the obligation might be subject to modification, and so you might get an increase.
It's also possible your order attempts to recognize future increases in income that the payor is expected to receive. If that's the case, you might not be able to get a modification.
You really should consult an attorney in your area to determine this. More importantly, if you are currently divorcing, ask your attorney about the alimony order.
Q: Should the court consider my financial circumstances in determining a temporary support award?
- A:
In some states, courts look at both the payor's ability to pay as well as the payee's need. A court isn't supposed to penalize or reward a spouse when setting an amount for spousal support.
That doesn't mean the support order can't be a tremendous burden, however. If you can't afford the order, it may be that you simply have too many bills, and you'll need to change your spending habits or life style.
It is also possible that the order is simply too large. If you gross $2000 a month and the support order is for $1200 a month, it is entirely possible that something was done incorrectly. You should probably consult an attorney about possibly appealing the alimony order.
Q: Will I have to pay my ex-wife her alimony arrearage after remarrying and divorcing again?
- A: It depends on the laws in your state. In some states the arrearage has accrued to the wife's benefit, and a subsequent remarriage will not terminate her right to the money. In other states, the remarriage will terminate her right to the arrearage.
Q: Will my husband's savings be taken into account in determining his alimony obligation?
- A: Judges usually consider many factors in making alimony decisions. The payor spouse's assets are normally one of the factors. And, in any event, it's likely that you'll receive a portion of the savings when the court makes a property distribution or division.
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