Can You Modify Alimony Without Involving the Court? Maybe, but you do so with great risk.

A court order or judgment remains in effect until it is modified and replaced by a subsequent court order of judgment,  right?   But, what happens if you and your former spouse agree to change the amount of alimony to be paid, on your own, without any court intervention? If you both agree on this change, do you have to formally have this agreement approved by the Court and incorporated into a further judgment?  If you rely on your "informal" agreement, and your ex-spouse later takes you to court, does that mean that the amount you did not pay because of this informal agreement continues to accrue over time?

The short answer is that it depends on how compelling the facts of your case are to prove you “detrimentally relied” on this "informal" agreement.  In other words, even though you may think you have an agreement to reduce the amount you have to pay, if that agreement is not made into a formal court order, are you at risk that your ex-spouse may change his/her mind and decides that he/she wants you to pay the full amount you were “ordered” to pay but did not for the last several years?  A recent case, known as Smith v. Smith addressed this issue and emphasized the need for parties to have post-divorce agreements formalized by a modification judgment.

In Smith, the husband and wife were divorced after a long-term marriage. Alimony was incorporated into the Judgment of Divorce, but after about a year of alimony payments per the Judgment of the divorce, the husband began reducing alimony payments steadily, over the next few years. There was evidence that the wife agreed to this reduction and that the husband relied on their informal agreement. No Complaint for Modification was filed with the Court, meaning that the alimony payments stated in the Judgment of Divorce were still applicable. A few years later, the wife filed a Complaint for Contempt with the Court, seeking $87,400 arrearage of alimony. The husband responded  that his former wife had agreed to these reductions, and that the reduced amount was  used to cover costs for the couple's emancipated children. The trial court found the husband not guilty of civil contempt, and the appeals court agreed.  However,  the issue of whether or not his alimony obligation should be retroactively modified was remanded to the trial court for further analysis.

The Smith case also confirmed that if there is evidence that the parties agreed to a reduction of support and the payor “detrimentally relied” on this post-divorce agreement, then a judge could give effect to that agreement to reduce support by “modifying” the alimony obligation retroactively (but not prospectively).  In this manner, a payor of alimony could be relieved from paying alimony that had gone unpaid because of a presumed, informal agreement that the alimony payor detrimentally relied on.  However, the operative would is, “could” and the Smith case made it clear that those statements should be analyzed in the broader context of the statutory section (M.G.L. Ch. 208 section 34) in which many factors are considered by a judge.  The takeaway here is that any informal agreement to reduce support should be incorporated into a formal order/judgment of the court.  Otherwise, the payor is a risk for significant litigation to obtain the relief he/she thought was agreed.

If you are considering a modification of alimony or other support in Massachusetts, call Mavrides Law at 617.723.9900, or email us at info@mavrideslaw.com.

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