Periodic or Lump-sum?

June 22, 2016 § Leave a comment

When Denise and Andrew Von Herrmann were divorced in 2012, their agreement incorporated into the divorce judgment included the following language:

“Wife shall pay husband periodic alimony as follows: On or before the 15th day of each month beginning August 15, 2012, $1,450 per month through March 16, 2016. Beginning April 15, 2016, and continuing through September 15, 2022, wife’s periodic alimony to husband shall be reduced to $500 per month, with the final periodic payment of $500 due on September 15, 2022. All alimony payments shall otherwise cease 1) upon the demise of the wife or husband or 2) upon husband’s remarriage or commencement of regular cohabitation with another woman.”

Denise filed a petition to modify in 2013, claiming a reduction in income from $180,000 to $85,000 a year. Denise had remarried or had her name restored to Runge at the time she filed.

Following a trial, the chancellor ruled that the payments were unmodifiable lump-sum alimony “due to the fixed amount and the definitive ending date. Denise appealed.

In the case of Runge v. Herrmann, decided May 31, 2016, the COA reversed. Judge Irving, for the court, analyzed the case law that goes in both directions on how to construe “hybrid alimony” provisions such as this. Instead of relying on those decisions, though, the court applied contract construction principles and concluded that it was the intent of the parties was that the payments were to supplement Andrew’s income and, therefore, they were in the nature of alimony, and not property division; thus, it was error for the chancellor to conclude that they were lump-sum alimony, which is a property-division tool. The case was remanded for further proceedings consistent with the opinion.

Some observations:

  • Ever since the MSSC began permitting so-called “hybrid alimony” that mixed and matched various features of the three major genres of alimony (i.e., periodic, periodic rehabilitative, and lump-sum), the cases are quite fact-specific. It is hard to draw any hard and fast conclusions about what language to use to protect your client’s interests.
  • As both sides argued here, the label you smack on the alimony arrangement you draft will not necessarily be controlling. Rather, the court must look to the substance of the parties’ agreement.
  • In this case, it might have helped if it had been specifically stated in the agreement that the parties agreed that the arrangement was to supplement income, and was specifically not intended to be any form of property division or lump-sum alimony.
  • Mention of the tax treatment in the agreement would probably have been dispositive. True alimony is taxable income to the recipient and deductible by the payer, unless some other agreed tax treatment is expressly stated. Lump-sum alimony, which is property division and not really alimony, is neither taxable nor deductible.
  • As I have said here before, I really wish the MSSC would do away with the term “lump-sum alimony” as it applies to property division. Its original meaning, ‘way back in 1856 when it was concocted by the court, was to allow payment of the entire amount of alimony that would be payable under the decree to be paid in one, or several payments. (That was back before there was an IRS that frowned on front-loading). Over time, the court expanded the meaning to include payments to equalize the parties’ estates in divorce. That fiction was necessary at the time to get around the principle that title controlled, and the court could not divide separately-titled property, but it could award “alimony.” The necessity for that fiction, however, went away with Ferguson and its progeny. Post-Ferguson, we understand that an equalizing payment may be necessary to divide the equities in divorce, regardless of title. So why don’t we call it an “equalizing payment” or something similar, and limit use of the term “alimony” to payments intended to replace or supplement income?

 

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