Modification actions for decrease or elimination of periodic alimony.

• Author: Walsh, Michael R.
• Position: Part 2

The Inquiry

Pat and Mike were boyhood friends growing up in the late 1940s in a gloomy, industrial, but sports-oriented town in northeastern Ohio. Sensing the economic decline which would occur with the loss of great manufacturing centers and the advent of advanced technology, both moved in the early 1980s after college to greener pastures in the southeastern U.S.

Pat arrived first in Florida more than 20 years ago and has established a lucrative distributorship business in farming and agricultural equipment which he operates through a subchapter S corporation and as its sole stockholder.

Mike came to Florida 10 years later after being transferred by a Fortune 500 company where he had been employed since college. He is now an executive vice president and travels extensively with a substantial salary, good perquisites, and excellent retirement benefits.

Pat's marriage to Mary ended some years ago with the emptying of the "nest." He is paying permanent periodic alimony and is not at all happy about it.

Similarly, Mike's marriage to Alice also ended because she wished to "do her own thing" and according to her, "he was never around anyway." He also pays substantial permanent periodic alimony.

Both Mike and Pat are in good health and are approaching age 60. Further, each of their former spouses has no medical or psychological issues or disabilities.

Pat and Mike are "soured on women," and don't even date. Neither have any dependants now that their children are raised and through college.

Not having seen one another for awhile, they have a pre-arranged meeting at an Indians-Tigers spring training baseball game and afterwards adjourn to a sports bar to watch the second round of the ACC basketball tournament. After lifting a few and relaxing, their conversation now turns more serious. The following is a summary:

Pat, Alice is still pursuing her art and sculpturing career. She hopes someday to make the "big sale," but has not done so yet. She has had attractive financial offers in advertising, art sales, and graphic art design, but has turned all of them down because she wishes to remain a self-employed independent. You know her--no one is going to tell her what to do. As a result, she is underemployed and is always frantic about her finances.

Mike, Mary is a freelance writer, but has now gotten into technical editing. She recently sold our old home deeded to her in the dissolution action and she has now moved in with Ned Brown, a lawyer and partner in a large law firm located near your home. She tells me she loves this arrangement, but will never marry again. He makes substantial money from what I hear. Additionally, I understand that Mary received a whopping profit on the sale and that this amount of money, together with her increased salary from the editing, will probably place me in good stead with the judge for a reduction or elimination of alimony.

Mike, I am thinking of expanding my business even though my children have no interest in it. I will have to cut down on my earnings to do so. It will certainly impact my standard of living, and I am seriously considering seeing a lawyer about reducing Mary's monthly alimony, especially now that she has additionally a "live-in partner" to help her pay her living expenses and also who has substantially improved her prior standard of living.

Pat, I am giving serious thought to accepting an offer of early retirement. I will be 60 in 11 months and can walk away with a substantial lump sum payment plus approximately $85,000 per year in income. Alice and I once considered the issue of retirement benefits at the time of our dissolution and transferred assets in order to affect it. As I understand the law, the court cannot now reconsider my retirement benefits as a source of income to continue paying alimony once I am retired. I am going to see a lawyer about this matter and will probably wind up petitioning the court to reduce the alimony since I cannot continue to fund $7,500 per month for Alice as I have been.

Alice's mother is in a nursing home. She is extremely wealthy and with Alice being the only child, I bet my life she has engaged in some sophisticated estate planning with her cousin who is a lawyer and recognized expert to make substantial annual or monthly monetary gifts to Alice or for her benefit. Also, Alice will receive an inheritance in the millions within a short time and considering her mother's health, she cannot last much longer. These facts, together with my early retirement and reduced income, I believe, will place me in good stead with the judge for a reduction or even termination of the alimony obligation.

Mike, what concerns me and what should concern you is whether we are taking the proper steps at the present time by filing a petition for modification. After all, it is tax deductible and Uncle Sam is picking up part of the "tab." Also, we do not wish to rush to judgment without "due diligence" as to the "true facts." We are at risk if our ex-wives file a counter-petition for an increase in alimony and that is granted. We will then be much worse off than we are now and sorry for rushing to court to have our "financial head" handed to us.

Frankly, I am also...