ALIMONY DOES NOT NECESSARILY END UPON RETIREMENT OF THE WAGE EARNER

A common misconception is that alimony will automatically end when the person paying the alimony retires.  Unless the settlement agreement specifically provides for alimony termination upon retirement, recent cases in hold that alimony will continue, although perhaps at a reduced amount.

In two Maryland cases, Ridgeway v. Ridgeway, 171 Md. App. 373; 910 A.2d 503 (2006)  and Stewart v. Stewart, No. 2601, opinion filed Sept. 2015 (Md. App. Sept. 2013 term (unreported)), the trial and appellate courts reduced but did not terminate alimony after the former spouse/former wage earner (the “payor”) retired. In Ridgeway, after retirement the alimony recipient continued working and had a greater income than the payor after he retired.  Furthermore, at the time of the settlement the parties had equally divided the marital assets such as the equity in the marital home and marital portions of the retirement accounts (e.g. 401(k), IRA, TSP, pensions) so that the alimony recipient and payor had an equal amount of marital assets at the time of divorce.

So why did the courts reduce but not terminate alimony?  In those cases, the Courts looked at the expenses of the recipient as the determining factor.  Although the payor’s income went down the recipient’s expenses did not.  Therefore the Courts ordered the payor to continue alimony payments equal to the difference between amount the recipient received from the pension payment and what she would have received from the alimony award.

It is important to note that in both cases the payor stopped paying alimony when he retired, incorrectly expecting that his alimony payment would terminate. In Ridgeway, the Court specifically rejected the payor’s argument that “the retirement payment replaces the alimony payment, warranting termination of alimony.” In both cases, the payor was found in contempt and had to pay the recipient’s attorneys fees and alimony arrears.

Ominously for those with existing settlement agreements, the Courts hold that unless the agreement specifically provided for termination of alimony upon retirement, then there is no right to re-open that issue later. Rather, the presumption was that indefinite alimony meant indefinite alimony, and only the amount, not duration, would be modified.

Pointers:

  1. If you are mediating a marital settlement agreement and want alimony to terminate upon retirement of the payor, then the Agreement must explicitly say that.
  2. If you do not have an alimony termination clause in your mediated settlement agreement and want to seek modification of an alimony award, file early (when you have a date certain for retirement) but plan on paying the full amount of the alimony until the Court has decided.
  3. If you stop paying alimony before the Court modifies it you may be found in contempt and have to pay the other side’s attorney’s fees.

Unhappy With Your Litigated Divorce Matter? Change Course!

 Litigation should be the last, not the first dispute resolution process that clients should use. I came upon the following blog, which I thought was applicable to many cases where the lawyer has steered the client to litigation to the client’s regret.  To many “old school” lawyers, litigation is the first recourse for obtaining a divorce. The author explains below what a spouse can and should do if you have regrets about the path your divorce is taking.

By Andrea Vacca

If you’re in the middle of a litigated divorce and are unhappy with the way things are going, you can change course.

You might have started the divorce process with the goal of ending the marriage quickly and feeling as financially secure as possible at the end. You might have hired the first attorney who came highly recommended from a friend or relative who has been through their own divorce. And all seemed fine in the beginning. Your attorney said she understood that you didn’t want to make your divorce World War III. She understood that you wanted to remain friends for the sake of your children. But as soon as it became clear that you and your spouse saw things differently, and conflict arose, the battle was on. Your attorney told you the judge is likely to see it your way and may have even encouraged you to write down all the divisive and emotionally painful issues between you and your spouse that would help you score points in court. And of course, your spouse’s attorney told him or her the same thing.

Now, 6 months or 1 year later, you see how combative and unproductive the legal proceedings actually are, you’re feeling more anger toward your spouse than ever and you’re wondering, “How did I get here? This isn’t how I wanted my divorce to go.”

It’s not too late to change course. For parting spouses who find themselves in an unwanted battle, turning away from litigation and toward a less adversarial approach to their divorce is still possible.

Some recent experiences with couples who moved from traditional (and costly) litigation to mediation or collaborative law have provided me with insights that I would like to share with you, or anyone you might know who is going through a divorce:

  • If you don’t like the way things are going, explore a different approach: If you feel that the original process you chose for your divorce was a mistake, make a change as soon as possible. The longer a divorce continues in court, the more positional each side becomes. Things are said in court that cannot be “unsaid.” Emotional damage can be done in the process that could make it more difficult for you and your spouse to ever come to a resolution or to be cooperative when living your post-divorce lives.
  • Your divorce lawyer is unlikely to be supportive of you trying a different process: He may tell you that he does not believe your spouse is capable of being reasonable and you need the “protection” that a court can provide. What he may not tell you is that he doesn’t want to lose you as a client. This may be especially true if you still have a robust sum in your checking account. All attorneys hate to lose a client, but this is especially true when the client can afford to pay legal fees. If your attorney attempts to dissuade you from trying mediation or collaborative divorce, certainly listen to what he is saying, but remember that you are the one going through the divorce – not your attorney. The choice of process needs to be up to you and your spouse.
  • It takes two reasonable people to move away from litigation and toward a non-adversarial process: You may need to be the brave one who initiates a conversation with your spouse to find out if he or she is also unhappy with the litigation process. If you haven’t had a civil conversation with your spouse in months, this can feel pretty scary. In that case, you may need some outside advice about how to facilitate the conversation. There are excellent divorce coaches who can help you get clear about what isn’t working for you in the current process, what your true goals are for this divorce and how to explain all of this to your spouse in a way that feels safe.

Maryland Eliminates Waiting Time for Some Uncontested Divorces; No Separation Required

MARYLAND ELIMINATES WAITING TIME FOR SOME UNCONTESTED DIVORCES; NO SEPARATION REQUIRED

 

The Maryland General Assembly approved, and the Governor is expected to sign, legislation which would eliminate the waiting period for an uncontested divorce from the current period of one (1) year.  The change will be effective October 1, 2015.

There are several important requirements to obtain a divorce under the new “mutual consent” law:

1)      The parties  cannot have any minor children in common;

2)      The parties must sign and submit to the court a written settlement agreement signed by both parties that resolves all issues relating to alimony and property, including any transfer of ownership of any property and division of any retirement accounts;

3)      Neither party files a pleading to set aside the settlement agreement prior to the divorce hearing; and

4)      Both parties appear before the court at the time of the absolute divorce hearing.

This legislation continues the trend in the legislature, reducing the waiting period for a divorce where there is a written agreement.  There are several important differences from the current grounds for a no-fault divorce.

Current voluntary separation statute FL Art. 7-103 (a)(4) New Mutual Consent Statute FL Art. 7-103(a)(8)
Available if there are minor children in common? Yes No
Requires living separate and apart? Yes No
Requires written settlement agreement? No Yes
Requires both parties to appear for the divorce? No Yes
Waiting period Yes No

 

This law highlights the legislature’s favorable view of the parties settling their marital disputes out of court.  If the parties are unable to resolve all of the issues themselves, or want a professional to draft the agreement, then mediation is usually the most cost effective way to achieve that result.  Other options to mediation are collaborative law, direct negotiations between the couple and their lawyers, or one party hiring a lawyer to draft the agreement with the other party hiring a lawyer to review the agreement (one lawyer cannot represent both parties).

It Takes Two to Fight But Only One to Change the Relationship

Written by Betsy Ross, LICSW:

Divorcing and divorced parents who work toward improving their relationship, can become free from the past faster and create a more stable, productive and enjoyable home life in which to raise healthier and happier children.

Parents who are unable to stop fighting either openly (through yelling, door slamming, name calling, etc) or ‘under wraps’ (with passive aggressive behaviors such as repeatedly arriving late, breaking agreements, ‘forgetting’ promises, etc.) contribute to making everyday life stressful, unhealthy, and chaotic. Frequent fighting, tension, and conflict is bad for everyone, especially for kids.

It Always Takes Two to Fight

One simply cannot fight the good fight alone. Surprisingly enough, whether stated (“I’ll never cooperate with you”) or implied, continued fighting involves an unconscious agreement between BOTH parents to stay deeply connected and involved with each other. Conflict can keep couples in the familiar territory of the old (and dysfunctional) ways rather than advance into the frightening land of the new and the unknown.

It Only Takes One to Change the Relationship

While indeed difficult to accomplish, by outright refusing to fight and standing strong in the conviction to be and act differently (even when feeling provoked or baited by the others terrible words or behaviors) one parent can single-handedly bring about slow and steady change. When both co-parents commit to this process, the benefits of better relating: Decreased stress, improved mental and physical health, and a brighter outlook toward the future, can be more quickly achieved and enjoyed by all.

Good Help Is Available

Moving beyond the old dysfunctional ways of relating to create a new, stable and more peaceful environment takes determination, hard work, and the development of new skills. It demands a willingness to look within to examine one’s own behavior and motivation, and the courage to take responsibility for increased self-control and decreased retribution-seeking behaviors in the future. Luckily, these days there are a variety of experienced and supportive divorce/mental health specialists available to provide guidance and assistance in this endeavor. Divorce and co-parent coaching utilizes proven tools and techniques, tailor made to meet the needs of each family, couple, or individual seeking these.

You, too, can take part in creating a brighter future for your children and enable them to develop themselves in a more healthful and happy environment during and post-divorce. Building a better co-parenting relationship will provide endless payoffs for you and for your children to learn, grow, and thrive in. It is among the greatest gifts you can give to your family and to yourself, both during and after your divorce.

Is It Possible to Have a Win-Win Divorce?

Mediation: Can Everybody Win?

by William H. Donahue, Jr., Esq., APM

In conflicts ranging from military battles to corporate wars to divorce, there’s usually a winner and a loser. In fact, we are conditioned to believe from an early age that when we come into conflict, there must be a victor who defeats another. So what do mediators mean when they say everybody wins in mediation? Is there such a thing as a win/win solution?

Creating Value
Most conflicts do have a win/win solution, but finding it often takes a lot of hard work, creativity and imagination. And most importantly, it takes a willingness to change the way you define winning. Let me give you an example in the divorce context. I worked with a couple recently that had been married for 27 years. I’ll call them Joan and Jerry. They had two grown children who were both out of college. Jerry earned over $100,000 a year as an accountant. Joan earned $45,000 as a teacher. The big issue they needed to resolve was alimony. Joan felt she was entitled to $2,000 per month alimony. Jerry felt she wasn’t going to starve on $45,000 per year so he shouldn’t have to pay alimony at all. Besides, he argued, the divorce was Joan’s decision.

If you look at this conflict the way Joan and Jerry did when they started mediation, there are very limited solutions. Joan will feel she won only if she gets the $2,000 per month. Jerry will feel he won only if he pays nothing. In litigation, they would settle the issue by both of them negotiating down, through their lawyers, to an alimony figure that made them both feel as if they lost. Jerry would be paying too much. Joan wouldn’t be getting enough.

But suppose they looked at the issue differently. What if they were able to redefine the goals they were negotiating? In mediation, I would ask them both about other things that were important to them. Relationships with their children would be an area we would discuss. How do each of them want to be seen by their children? What kind of role models do they want to be? I would ask them about the relationship they want to have with each other after the divorce. Is it important to them that they end the marriage with respect for each other, that they be able, to some extent, to put anger and bitterness behind them? I would also talk to them about their financial goals and needs in the future. How and where did they each hope to live, and what would it take to make them both feel secure.

You might be asking, what’s the point of all this? Jerry still has to decide if he’s going to pay alimony without being forced to by a judge, and if so, how much? That’s the decision he has to make, but the reason behind these questions is to help Jerry and Joan both think beyond the issue at hand about what in their lives is important to them, has value to them, and that they want to hold onto after the divorce. In the process, they may find or create value where they didn’t see it before. In fact, that’s just what happened. The couple came to realize that several of the things we talked about were of great value to them. Despite his present anger, Jerry didn?t want to start a new life filled with anger and knowing that Joan resented or even hated him for using alimony as a way to punish her.

If coming out of his divorce with a sense of self respect and the knowledge that Joan respected him was important to him, what kind of solution to the alimony issue would best enable him to get what he valued? After further discussions, and each of them consulting with their attorneys, they settled on a figure reasonably close to Joan’s original request. But they both felt they had won. Joan won because she would have the alimony she needed to live comfortably and with a minimum of disruption to her life. And Jerry won because he had changed what it meant to him to win. His decision to pay alimony was consistent with the way he wanted to feel about himself, with the kind of person he thought himself to be and wanted Joan and his children to think him to be.

But wait, you may be saying. Isn’t the result the same? In settlement terms, the answer is yes. Most of my mediation clients reach solutions that are similar to ones they would reach in litigation or that a judge would decide, but the result is not the same and the difference is how each of them feels about the settlement. And that makes all the difference in the world. If you don’t think the difference is important, think about this statistic. Nearly 40% of people who get divorced through litigation end up back in court after the divorce because of a dispute they can’t work out. Only 4% of people who mediate their divorces end up back in court. Through mediation, both parties in a divorce feel they won something of value to them. This makes them less likely to harbor resentment that could lead to more conflicts down the road.

Child Support and Alternative Calculations for Child Support

In Maryland, when the Circuit Court determines child support, depending on the total combined gross income of both parents, it uses an algebraic formula commonly referred to as “child support guidelines.”  The formula considers the number of children, the income of each parent, and the percentage of time the children are in each parent’s care and other expenses paid by each parent, such as work-related child care and health insurance.  The following blog, written by Barney Connaughton, Esq., family law attorney and mediator discusses alternatives to Child Support Guidelines and how it relates to mediation.

 IS THERE ANY ALTERNATIVE TO GUIDELINE CHILD SUPPORT?”

Couples can reach agreement to a support amount that is greater or less than the guideline amount.  For the Court to accept such an agreement the couple is required to acknowledge their right to have support set by guideline, that their agreement is in the best interest of the children and will allow each parent to adequately meet the needs of the children.  If child support is set in a sum less than the guideline amount, the receiving parent can later petition the Court to have the amount increased to the guideline level which the Court will do given the mandate to order support consistent with the state guidelines.

Mediation gives the couple flexibility regarding the setting of child support. They may choose to stick to a guideline level of support, or they may look at the needs of each household and come up with a level of support that focuses more on how each of their needs can be best met. Guideline child support provides the Court with a quick mechanism to set support. Unfortunately, this level of support may either be unrealistic to the parent obligated to pay or insufficient for the supported parent to meet the needs of the children. Looking at all the circumstances of the couple, rather than just the inputs that the guideline calculations call for, can aid in making a support decision that is best for the whole family.

10 Thoughts for Divorcing Parents

Pat knew divorce was inevitable. It was a matter of WHEN? After the children are past the age of 5? 8? 10? 14? They had all tried to keep the family together, but they were individually coming apart at the seams…. Divorce is usually painful for everyone involved. But how to shield your children from unnecessary pain – this is the question!
If you are planning or have recently divorced, here are a few things to consider:

1. There’s Hope

Divorce itself has not been shown to cause long-term negative effects on children. It is the way that people handle the divorce which makes a difference. Most (about 80%) of children have basically adjusted to the divorce within one to two years after the initial separation. While feelings and issues remain, basic healing and stability usually occur.

2. Nobody’s perfect.

People are not trained in how to get divorced or how to be a parent. We live in a changing world and there is no one right answer for what to do, such that many ways work and each situation is unique.

3. The level of conflict is usually the biggest problem.

Research has shown that a high level of conflict between the parents is more disruptive to children’s development than whether their parents divorced. This research shows that a high-conflict marriage is harder on children than a low-conflict divorce. A high-conflict divorce is even worse.

4. Stability is a key factor for children of any age.

To the extent possible, parents should try to keep or create routines that the children can count on. Children need consistency on which to base their growth. Therefore, firm rules, regular activities, special time with the child, etc. are very helpful.

5. Explain changes ahead of time, if possible.

Children and adults adjust to change more easily if we can prepare first in our minds. No one likes surprises of the upsetting kind.

6. Make time to listen to your child

Children need to process feelings and worries much like adults do. Listening with interest and without judgment is important. Avoid reacting to what the child says with your own issues or conclusions.

7. Avoid criticisms of the other parent in front of the child.

This is easy to say and hard to do, but very important. Your child needs to have a relationship with the other parent and children do better when they are not caught in the middle.

8. Move slowly introducing children to your new relationships.

Your child already has a lot to cope with. The more pressure to like someone new, the more negative their reaction.

9. Get adult support for yourself.

While you want to inform the child of what is going on, don’t rely on the child for support. You need to talk, so find many people to talk to.

10. Do fun activities with your child.


By enjoying time with your child, you will both feel better and be healthier for it. These suggestions won’t make all pain go away. They might just help make the decision to divorce manageable for you and your children. If you have more detailed questions or concerns, continue reading on the subject; ask for resources from your child’s school counselor or teacher; or seek the help of a trained EAP or mental health professional. You might be surprised at how much help you can get to give you direction and quiet your worries.

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Bill Eddy is a family lawyer, family mediator and family therapist in San Diego, California. He is the developer of the New Ways for Families™ method, as well as the author of several books including It’s All YOUR Fault! 12 Tips for Managing People Who Blame Others for EverythingBIFF: Quick Responses to High Conflict People, Their Personal Attacks, Hostile Email and Social Media Meltdowns, and Don’t Alienate the Kids! Raising Resilient Children While Avoiding High Conflict Divorce. For information about training, resources or books, see www.HighConflictInstitute.com.