I am a divorce lawyer in Oakland County, Michigan. My office is centrally located in Auburn Hills, which is easily accessible to Beverly Hills, Birmingham, Rochester, Clarkston, Troy, Bloomfield, Lake Orion, Oxford and Macomb County. Alimony is typically the most contentious issue in the cases where it is in play. If the parties are able to come to an agreement, they may agree to non-modifiable alimony, a set monthly payment for a specific length after which spousal support is forever barred.
Is there a problem with modifiable alimony and may a court order non-modifiable alimony?
Yes there are problems with modifiable alimony, but there are also problems with non-modifiable alimony. The problem with modifiable alimony is that either party may seek to change the amount of alimony payments or increase or decrease the length of payments by going back to the court. This leaves the matter open for litigation and makes it difficult for both parties to have any finality. However, non-modifiable spousal support means that if something happens to either party which would justify changing the amount or duration, such as an accident to the payer of the support, it does not matter – the alimony must be paid.
The matter of Wartinger v Wartinger, Mich App No. 310719, February 4, 2014, (Unpublished) addressed the question of whether a court could order non-modifiable spousal support and affirmed that it cannot. In that case the parties were married for 13 years. The husband was a urologist employed by MSU and the defendant had been a stay-at-home mother since 1998 when the parties married.
There were a number of issues that the parties disputed including the husband's ability to earn income after an accident and the wife's ability to earn income after being out of the work force since 1998. Another issue revolved around the fault of the parties for the breakdown of the marriage. The wife alleged the husband had an affair in 2005 and it appears that the parties had no form of sexual relations for six to seven years before the husband filed for divorce.
The court used a three-year average to determine the husband's income because the wife alleged that he intentionally reduced his income in the year preceding the divorce. The court eventually ordered non-modifiable alimony in the amount of $3,259 per month for a period of seven years. The husband appealed this order of non-modifiable alimony apparently because he was concerned that he would not be able to continue to earn the income he earned based upon the three-year average.
The appellate court reversed the trial court on this issue. According to the statute that governs the issue of spousal support, a judgment regarding alimony may always be revised or altered subsequently by the court. The case law has established that this means that if the parties are not able to reach an agreement on their own and the case goes to trial, then the court is only able to order spousal support that is modifiable.
The statute has specifically been interpreted in the past to mean that a person cannot be precluded from seeking to continue alimony for a longer period of time at the end of the ordered period for support. So for instance, if the court orders rehabilitative support for five years, the recipient of the support may come into court at the end of the five year period and ask the court to extend the length of the payments. The converse is also true, if the party that has to pay the alimony would like to reduce or stop the payments before the end of the five years, that person may do so. Finally, the court has indicated that the person seeking to modify the spousal support, whether upward or downward, bears the burden of proving the justification for the modification.
One reason for the parties to try to come to an agreement regarding alimony is that they may agree to make it modifiable or non-modifiable and it is up to their discretion. If the court has to decide the issue, then the alimony question will forever be open to litigation. As a result, I have been retained on many cases to litigate the issue of alimony six years or more after a divorce with all the resulting costs, fees and stress to both parties.