Non-Modifiable Alimony

Tuesday, February 17, 2015

If you call alimony "non-modifiable" in a Marital Settlement Agreement, it is; even if you remarry.
A new case, Herbst v Herbst, decided October 1, in a Florida appellate court, says so. In that case, the former wife remarried and the former husband sought to terminate alimony based on that re-marriage.
Ordinarily, if there is no agreement, or the agreement is silent as to the issue of modifiability, then the Common Law inherited from England says that alimony is automatically terminated if the former wife remarries. But in the Herbst case, the parties' settlement agreement only said that the alimony was non-modifiable. (Presumably, the husband wanted that term in the contract to prevent the wife from coming back some day and asking for more money.) The Herbst contract failed to add the language that stated: "unless the wife remarries." Since individuals are free to enter into contracts that go farther than Common Law provides, the Herbst court ruled, essentially, too sad.
The Takeaway 

Say what you mean in your contracts. Be specific. Think about possibilities. Obviously, there is nothing to prohibit a divorced spouse from getting married again. The implication in the Herbst case is that the parties contemplated that possibility and took that into account. In other words, it appears that the wife traded her right to seek upward modification of her monthly alimony in the future in exchange for the husband's agreement to continue to pay a lesser amount forever into the future, no matter whether the wife remarries or not. 

Hence, the need to be thoughtful, not be in a hurry, and hire a good "wordsmith" (i.e. lawyer). Contact the divorce attorneys at Mark Lang & Associates for help during this trying time by calling us at (407) 599-4433. 

Mark Lang 2/17/2015

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