Post Judgment Divorce Action
A decision rendered in a post judgment divorce action highlights the importance of using clear and unambiguous language when drafting alimony and support provisions meant to preclude modifiability. In that particular case, the husband was obligated to pay to the wife periodic alimony in the amount of $1,500 per week until the death of either party, the wife’s remarriage or cohabitation, or her sixtieth birthday, whichever first occurred. Significantly, the wife was also awarded a one-half interest in the marital portion of the husband’s profit-sharing plan which had a value of approximately $1,000,000, although the parties later agreed to reduce her share by just over $500,000.
Motion to Modify Alimony
One month before her sixtieth birthday, the wife filed a motion to modify alimony, claiming that substantial changes in the market resulted in a significant reduction in the value of the husband’s profit-sharing plan such that she would be unable to support herself as originally anticipated. The trial court granted the wife’s motion and, although it modified the amount of alimony down to $1,095 per week, it eliminated all limitations on the term of the award.
The husband appealed arguing that the trial court’s order impermissibly transformed a limited duration alimony award into lifetime alimony. In upholding the trial court’s decision, the Appellate Court explained that provisions precluding modification are generally disfavored, and to that end, an order shall be considered non modifiable only if the decree distinctly and unambiguously expresses so. Indeed, if an order purportedly precluding modification is ambiguous, it will be deemed modifiable.
Although the order in this particular case indicated that alimony would terminate upon the wife’s sixtieth birthday, there was no provision in the judgment specifically stating that alimony was non modifiable. For that very reason, the Appellate Court upheld the trial court’s ruling, declaring the provision ambiguous, and, thus, modifiable. Again, this case emphasizes the importance of using clear and unambiguous language when crafting a separation agreement which will ultimately be incorporated into the Court’s judgment of dissolution. If ambiguous or imprecise language is used, the provision at issue may become subject to judicial interpretation.
Should you have any questions regarding matrimonial matters, please do not hesitate to contact managing partner Joseph C. Maya to schedule a free initial consultation. He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at firstname.lastname@example.org.