Permanent Alimony

[whit]

We have been separated since 09/2005, we have one biological child together, age 12, and she lives with me. We were married 13 ½ years at the time of the separation and I am 44 years old. I filed, through Legal Aid, in 01/2007. We went to mediation in 03/2007, we now have a temporary agreement in place regarding: shared parental responsibility, parenting schedule with minor child, and child support($867.17). The issue of alimony is being contested. I filed my own taxes for 2005. He was claiming seven deductions for 2005, instead of four deductions. He claims that he is unable to pay me temporary alimony because I filed separately.

He wants to offer 4-5 years rehabilitative and I have been advised that I may be entitled to permanent. During the length of our marriage, he acquired his BA and Law degree, and has been practicing for approximately 5 years. At the time of separation, he grossed $86,000.00, but changed jobs and locations, and now grosses $79,000.00. I raised our two daughters, and was not able to acquire a college education during the marriage; I now am attending college full-time for the past year, with no temporary alimony to help my child or me. Do you think I should be receiving temporary alimony now?

Finally, should I pursue permanent alimony, and if I do, would it draw out the duration of the divorce past the average 6 months? Thank you.

[Divorce Attorney Iken]

Based on the length of your marriage and the other facts you presented, period permanent alimony is very possible. A hearing on temporary support does not have to delay the final trial, it can proceed in parallel with other goals.

You are concerned with drawing out your divorce. The fact is: people tend to fight harder and longer when permanent alimony is at issue. It is a personal decision, but you may consider a compromise. A 4-5 year rehab package may be too short. 8-10 years seems more fair in your case. If you accept something like this, you are giving your spouse a major gimmee - no permanent alimony.

Remember one issue in your calculations: child support is based on the income remaining after alimony payments are made. So child support would be reduced.

I do not see why the taxation issue affects his bargaining stance to this degree. My take - that is a smoke screen.

Last thing on rehab alimony - I prefer to call it temporary alimony. I also like "non-modifiable."


Howard Iken
Attorney at Law

[whit]

Regarding the 2005 taxes, he is claiming thatwhen I filed separately, this caused him to owe approximately $10,000.00 ($7,000.00 taxes plus $3000.00 penalty and interest) to the IRS. On his financial affidavit, he has made arrangements with the IRS of payments of $250.00 monthly. He tells me that if I amend the taxes with him that he will pay me more. In mediation, he advised my lawyer that if I seek permanent alimony, he would seek custody of our daughter and ask that I pay ½ his school loan ($109,764.27). I have asked him on different occasions to help my daughter and me financially, and his response is that if I “Want anymore money from him that I will have to enter into an agreement with him.” I’m only making $8.00 an hour presently, and I have never earned more than $11.00 an hour before our separation, so life has been really hard for me and my daughter this past year and a half. I have been forced to live off school loans. I am a little confused as to why my lawyer has not filed for temporary alimony, considering that we have been separated since 09/2005.

[the second wife]

When my husband was going thru his divorce in 2003, unfortunately he did not have an attorney and his ex-wife and her attorney "raped" him by requesting permanent alimony until she remarries or dies.

After our marriage in October of 2006, we were informed by the adult daughter of my husband that his ex-wife was moving in with her boyfriend. We have heard about the law Jeb Bush passed and are curious about it. This woman is living with a man that is employed by a government agency and, more than likely, makes much more money that my husband, who is a blue collar worker (truck driver).

Our question is, does the Jeb Bush alimony law have any bearing on our situation? My husband does not get paid sick days. He gets his vacation pay in April and must budget for when he takes off work. When my mother was deathly ill and we thought she was about to die, he took off to be with me because he didn't want me to be alone if she did pass. Because he was gone 3 days of his payweek, he basically worked that week to pay his alimony (He pays $500/month).

Are we having a pipe dream, thinking that there is some way we could get the alimony reduced or stopped? I went on the web site for the county in which the divorce took place and have seen where she has filed a change of address with the court.

Do you have any suggestions on our situation?

[Divorce Attorney Iken]

The new law you are speaking of allows a modification or termination of alimony if there is a "supportive relationship." In practice, that has become a high hurdle. The person receiving alimony must be living in a defacto marriage. That means there must be substantial support to the person from their new "significant other." Proper evidence of this can consist of joint bank accounts, joint ownership of cars, boats, houses, etc. It takes more than simply living together.

Yes, this law is being used to challenge alimony in some situations.

[Divorce Attorney Iken]

Whit,

One thing you are experiencing is the fact you have legal aid. They will not put in the effort of a private attorney.

I would suggest you be open on the tax issues - as long as you will share in the financial benefit.

School loans are marital debt. The fact he is not pressing this matter yet is a gimmee to you.

Everything in a divorce is give and take - you have to prioritize your personal goals.

Howard Iken
Attorney at Law

[whit]

I have told him that I would amend the 2005 taxes with him, but that I would first like to have a consultation with someone who knows taxes, and that I would need him to pay for the consultation. He will not agree to pay for the consultation. I spoke to the IRS and was told that if I amend the taxes, and he still owes anything afterwards, that I will be responsible for half. I currently receive a small grant for college, based on my 2005 and 2006 tax returns (income of less than $9,000 yrly) that I filed separately, if I amend the taxes won’t that effect my financial disclosure with the school for upcoming grants that I may receive? Also, he was claiming 7 deductions for 2005, when he should have only been claiming 4 deductions, is that considered tax evasion? Finally, I have a 20-year daughter, who was living with us, graduated from high school, and was attending college full-time in 2005. Initially, he wanted to claim our 20-year old daughter, but now he says he will not. I am not sure how to proceed in regards to amending the taxes with him.

[Divorce Attorney Iken]

That is true - if you sign a joint return you are equally responsible for tax deficiencies. You really need to talk with an account to discuss the potential. If he wont pay for the consultation - that seems completely unreasonable. You should not do this without an expert opinion.

[rebecca1]

My fiancee and I are in a similar situation, though the Final Judgement does not list support as Permanent, etc. just until she remarries or dies. We have some potential types of proof that she is involved seriously in a relationship with a man and has been since early on in the marriage...hence, the reason for the devorce. He will be done with child support soon due to the kids age, but what are the Substancial circumstances for modifying the alimony? Second family? Income change? Proof ex wife is depositing more than just claiming on taxes? She also wants a life insurance policy with her as beneficiary. Along with every cent he has ever had and will ever have. Thank you and your site is very helpfull.

[Attorney Howard Iken]

Changes in income on either side

Payment and/or help with expenses by a significant other

Termination of child support (this event frees up money)


Attorney Howard Iken