A Rhode Island Divorce Lawyer's Second Tip for the Alimony Language in a Marital Settlement Agreement or Family Court Decision!
This Rhode Island divorce tip article is a follow-up to my first tip article which may be found at http://www.rhodeislanddivorcetips.com/2008/11/rhode-island-divorce-lawyers-tip-on-alimony-language.html
This first tip article is helpful, if not essential, to helping you understand rehabilitative alimony in Rhode Island. Therefore I recommend that you read my first alimony tip article if you do not already know how Rhode Island law treats alimony in general.
Lanuguage is crucial in both Rhode Island Settlement Agreements and especially in the Rhode Island divorce proceedings when it comes to alimony awards and alimony waivers.
Whether you are representing yourself or you have a Rhode Island lawyer to represent you in your divorce proceeding, it is best to be vigilant when it comes to the language used by you, your lawyer and even the judge. In this divorce tip article the crucial word you should focus on is "non-modifiable."
Leaving out the word "non-modifiable" in your Marital Settlement Agreement or failing to clarify to the judge a request for the court's order to include the word "non-modifiable" could lead to hazardous consequences.
Consider this Rhode Island Divorce example about Mr. and Mrs. Lawyers:
Mr. Lawyers has agreed to pay Mrs. Lawyers alimony of $400 per week for a period of three (3) years in their Marital Settlement Agreement and he has testified to that on the record of the court. Mrs. Lawyers agrees that Mr. Lawyers' testimony is accurate and that $400 per week for three (3) year is precisely what they agreed to in their Marital Settlement Agreement.
Mrs. Lawyers testifies that she wants to waive alimony after that three (3) years has been paid, that she knows that this waiver would be permanent, and that she believes she will be able to sustain herself at the end of the three year period and therefore she would like the court to grant her permanent waiver.
At the end of the hearing, the Court orders the following:
Mrs. Lawyers is awarded weekly alimony of $400 per week for a period of three (3) years from Mr. Lawyers and that upon completion of the three (3) years Mrs. Lawyers' request for waiver of alimony is granted and she waives alimony permanently.
Do you notice that the word "non-modifiable" does not appear anywhere in the excerpt of the testimony above? Do you notice that Mrs. Lawyers confirmed that it is "precisely what they agreed to" in their Marital Settlement Agreement?
Let's assume this is correct and that the Marital Settlement Agreement doesn't contain any reference to alimony being "non-modifiable".
Now, imagine that Mr. Lawyers secures a job that pays considerably more than his last job, that he becomes a partner in a very profitable business, that he creates a very successful invention, that Mrs. Lawyers gets into a tragic accident in the first year after their divorce which leaves her with brain damage which prevents her from proceeding with her attempts to rehabilitate herself and become self sustaining.
Choose any one of these events or any other event that you might think of that drastically affects the earnings or abilities of Mr. and Mrs. Lawyers within the three (3) years alimony is to be paid.
What is important here is what Mrs. Lawyers DID NOT agree to!
Even though Mrs. Lawyers waived alimony permanently after the three (3) years of payments, she DID NOT agree at any time that the alimony during those three (3) years would be non-modifiable.
If Mrs. Lawyers wanted to, she could retain a Rhode Island lawyer and once again return to court and request that the alimony she is receiving in those first three years be increased based upon either Mr. Lawyers' increase in his ability to pay more alimony and/or her own decrease in her ability to provide for herself over the long term as planned.
Though the agreement provided for $400 per week of alimony for a period of three years, this merely indicates to the court that this is an amount and timeframe that was either agreeable to the parties or ordered by the Rhode Island family court judge at the time of the divorce. However, without the word "non-modifiable" before the word "alimony" this DOES NOT prevent Mrs. Lawyers from arguing that neither the parties or the court intended that it could not be modified during that three (3) year period if circumstances changed which warranted a modification of the amount of alimony.
What could this mean for Mr. Lawyers?
If either Mr. Lawyers or his Rhode Island attorney did not add that one word "non-modifiable" then Mr. Lawyers could end up paying $600, $900 or even $1,200 per week to Mrs. Lawyers for the remainder of the three (3) year period, if the Rhode Island family court judge found that Mrs. Lawyers had that need for such alimony and Mr. Lawyers was capable of paying that amount of alimony.
What monetary difference could this make to Mr. Lawyers?
Let's say the court found Mr. Lawyers had the ability to pay Mrs. Lawyers Rhode Island alimony in the amount of $900 per week for the last 28 weeks of the three (3) year alimony period that was agreed upon. Let's also assume that the court held Mrs. Lawyers to the three (3) year period of alimony because she had validly waived alimony permanently after that three (3) year period of time.
Mr. Lawyers had agreed to pay $400 per week. Mr. Lawyers is now ordered to pay an extra $500 per week for the last twenty-eight (28) weeks. This now requires Mr. Lawyers to pay Mrs. Lawyers an extra $14,000 that he hadn't planned on.
To Mr. Lawyers and/or Mr. Lawyers' Rhode Island attorney, the omission of that single word . . . "non-modifiable" . . . just cost Mr. Lawyers $14,000.
The words you use in your agreement and the words used in the order by the court are crucial. Care should be taken in drafting any alimony provision in a Rhode Island Marital Settlement Agreement. Care should also be taken to make sure that the word "non-modifiable" is used by the court in its order, if that is what is intended or expected by the parties.
In this example it was worth $14,000 to Mr. Lawyers. That's one very costly word, don't you think?
Christopher A. Pearsall
70 Dogwood Drive, Suite 304
West Warwick, RI 02893
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Copyright 2008. Christopher A. Pearsall
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