Consider the following scenario: Husband and Wife have been married for 23 years. Husband and Wife still get along but have just grown apart. Husband and Wife get divorced. Their divorce was not acrimonious and they remain friendly with one another. Husband agrees to pay Wife $2,500 in alimony for 13 years. Husband sets up an automatic deposit so that alimony is deposited into Wife’s bank account on the first of every month. After 4 years, Husband has remarried and he is growing tired of paying alimony to his first Wife.
Husband sends Wife an email, explaining that his income has decreased. He provides her with no documentation of his decrease in income. He simply tells her that the law allows him to automatically reduce her alimony based on his reduction in income. She does not know if this is accurate but has been having some health problems so she does not fight. She cannot handle the stress of a fight right now. She sends back an email, which reads: “Okay.” Husband begins reducing her alimony by $400 per month.
A year later, Wife does some research and realizes that Husband misled her with respect to the law. She discovers that it was improper for Husband to unilaterally reduce the alimony based on his decrease in income. She learns that there is no automatic reduction of alimony just because the obligor’s income decreases. Wife gets an attorney and files a Motion for Back Support.
Husband also hires an attorney and claims that Wife agreed to the reduction in alimony and therefore, the agreement to reduce is an enforceable contract. Who wins? Husband wins because Wife acquiesced to the reduction in alimony by stating “Okay” and therefore, cannot come back several months later for back support. If Wife had said no when Husband asked to reduce his alimony, it would have been on Husband to file a motion for reduction of alimony. At that point, he would have to show that the circumstances warrant a reduction.
If Wife had said no and Husband reduced his payments anyway, Husband would definitely owe for back support since the alimony would accrue until he filed a motion. In this scenario, the simple email from Wife stating “Okay” when Husband explained the reduction is arguably an enforceable contract. The moral of the story is to protect your court ordered support award. If your ex-spouse misses a payment or unilaterally reduces the payment, you should immediately voice your disagreement in writing.
You do not have to file a Motion to enforce the obligation right away, but you do need to document your disagreement if you ever intend to enforce the support obligation in court at a later time.
Jessica H. Anderson
Divorce Attorney Reno, NV