Alimony – Part Deux: Are you going to have to pay alimony?

The basis upon which alimony is calculated is usually either an average of your past few year’s income or your current income. How you calculate this is important.

If your income is stable it is easy; but if your income is heavily commission or bonus based and is unpredictable then you could be in a position of having to amend your alimony annually, possibly having to go back to court.

What is your income now vs. where it has been and where it will likely go? If your income is declining then you will have to re-negotiate your support obligations as your income falls unless you can plan ahead. Rather than spend gobs of money on legal fees to try to prove that your income is reducing, you could suggest adding a formulaic approach to re-evaluate alimony if the reduction does occur. The formula will save time and legal fees but it is a double edge sword in that it will work both ways; if your income goes up your support obligations will as well. If it is going up then settle for something reasonable and you will be less likely to have to re-negotiate things in the future.

There is something to be said for doing the right thing and getting on with life.

Your x may come back at you if your income continues to rise but there is a limit to what can be asked. If during your marriage you only earned, $100,000 a year and post divorce you start to earn $150,000, it will be difficult for your X to claim rights to the increase because it is beyond the marital lifestyle (this does not mean that your X won’t try to get more). You may be subject to greater child support obligations but additional support is not likely.

You could ask for an anti Lepis clause. This clause will result in both parties giving up their right to have the agreement re-evaluated due to a change in circumstances. For a more detailed explanation ask your lawyer or Google Lepis vs Lepis. I do not provide legal advice.

Do you want to be free of future claims on your income from your x. If so and there are enough assets you might want to consider a lump sum payment in lieu of alimony. This is where a disproportionate share of your assets are given in exchange for no future alimony?

Can you earn back your savings with no future drain on your income?

If you feel that your income will rise in the future and you have enough assets, (equity in your home, savings or pension assets) then this might be the way to go.

If you take this approach and add a clause preventing future rights for alimony you are free and clear. Post divorce your goal should be to move upward and onward and this approach eliminates having to re-evaluate/re-negotiate support in the future.

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