Modification actions for an increase in periodic alimony.

• Author: Walsh, Michael R.
• Position: Part 1

Jean and Joan have been close friends since high school. Each married a professional man and had one child before their marriages were dissolved approximately five years ago. These confidants live in the same lakefront neighborhood which has experienced substantial appreciation since the entry of the final judgment. Each drives a comparable Mercedes SL500, approximately three years old, and with relatively low mileage. Neither has a "significant other" nor has engaged in any living arrangement with a member of the opposite sex. Each is unemployed and in their mid-40's. They have chosen to meet in an upscale restaurant in a quaint, quiet part of town to discuss the following:

Jean: My real estate taxes have gone up the last three years, Joan. The same for my flood and homeowners insurance.

Now that I am no longer receiving child support for Martha, I really don't know whether I can retain the residence or even maintain it in the manner in which I would like to.

Also, what about these escalating gas prices? I can hardly afford to drive my automobile.

Considering that Ted and I were married for such a long time, and I was a full-time homemaker and mother, I am wondering whether at my age and station in life a search of the job market is actually worthwhile. What do you think?

One of my main worries is that it is actually not practical for me to return to work for $15-17 per hour. I have thought about going back to get my college degree that I did not pursue because of marrying at an early age, but I am wondering whether many of the college courses taken in the mid-1980s are now even transferable or will be credited!

Is your investment portfolio now performing as well as it did two or three years ago or are you having the same problem with an up and down market as I am experiencing? Do you know of a good financial counselor? Can you yourself recommend some investments which will produce a good yield since I need the additional income?

Frankly, Joan, I don't know what to do. If only my attorney five years ago had included a cost of living increase in the marital settlement agreement, I may not feel the financial pinch that I am presently experiencing!

I know that Ted must be doing somewhat better since he has just bought a new condominium and has leased a Hummer automobile.

I am seriously toying with the idea of going back to court to increase alimony, but I am worried about the cost in terms of fees and expenses. Do you have any recommendations?

Joan: Yes, Jean, I recommend the lawyer who represented me in my dissolution action since he seems to be very knowledgeable and can probably advise you as to the chances of success in a modification action.

(Part II of this article will pertain to modification actions for a decrease in periodic alimony. This article does not concern itself with an award of rehabilitative alimony and a subsequent action to increase, extend, or convert it to permanent, periodic alimony.)

The Referral

It is against this background that Jean comes to see you. She has developed a perception of the relief that she will be seeking and asks you to advise her as to her chances for an increase in periodic alimony plus an award of attorneys' fees and costs.

Before the first meeting with Jean, you have hopefully reviewed either the court file or already obtained the file of the client which contains all pleadings, agreements, stipulations, orders, and judgments as well as correspondence, transcripts, or depositions. Absent such a thorough inspection, the attorney will be clueless as to how and on what basis the parties arrived at the standard of living developed during the marriage and whether the alimony award represents a sum sufficient for Jean to enjoy a stable, financial living pattern reasonably comparable to that enjoyed during the marriage.

One of the most important areas to thoroughly explore is how Jean arrived at the fixed or estimated living expenses itemized on her initial financial affidavit. Further, it is important to note whether she had access to sufficient documentation to prepare such a list. Also, what was the process used by her to identify and classify marital and nonmarital assets and liabilities and then to value them. Did she understand during this process that a court would take into consideration evidence as to the approximate yield she would receive from a distribution of marital assets and liabilities as well as an imputation of her income for self-support purposes, and how these factors may have impacted the needs on her financial affidavit? (1)

An inquiry should then be made as to the client's education, work experience, and whether these matters were considered by the parties or the court in setting the alimony.

The attorney should then make an objective and independent judgment as to whether, based upon the record being reviewed, the alimony award initially met reasonable economic expectations for the future when compared with the financial entitlements that she would receive from equitable distribution and given the client's age, health, education, work experience, the duration of the marriage, contributions to the marriage by her, and any other equitable and just factor which could have or would have been argued at that time on her behalf.

Does the language of the final judgment or marital settlement agreement independently provide that the alimony award is a reflection of the standard of living and would permit the recipient at present and in the future to support a similar lifestyle...