Hybrid Alimony With a Bite

June 13, 2017 § Leave a comment

Brian and Ruth’e Korelitz were in negotiations to settle their divorce case in 2006. When it came time to address the alimony issue, one of them produced a proposed provision that required Brian to pay Ruth’e periodic alimony in reducing amounts in three-year increments until Brian’s retirement. In the course of negotiations, however, the parties agreed to some handwritten deletions and insertions so that the alimony provision ended up looking like this:

A. Periodic Alimony. [Brian] agrees to pay unto [Ruth’e] as periodic alimony  the monthly sum of $2,850.00 per month, beginning the first day of the month immediately following execution of this Agreement for a period of thirty-six (36) months, reducing to $2,600.00 for a period of thirty-six (36) months, [and] reducing to $2,100.00 for a period of thirty-six (36) months. Periodic [A]limony shall then reduce to $1,750.00 until September 1, 2019, or [Brian’s] retirement, whichever occurs later, whereupon periodic alimony shall cease. Said periodic alimony shall be payable one-half on the 1st and one-half on the 15th of each month. In addition, such periodic alimony shall cease upon the remarriage of [Ruth’e] or upon the death of either party[,] whichever occurs first. The payments shall be deductible by [Brian] and includable as income by [Ruth’e], both for state and federal income tax purposes. [Handwritten addition as follows:] Said payments are further non-modifiable, except as set forth herein above.

All of the strikeouts and handwritten language were initialed by the parties. The agreement was approved by the court, and the parties were divorced.

In 2014, after Ruth’e had taken up with another man, Brian filed for modification to terminate based on the relationship. He also contended that he had suffered a reduction in income.

It should not surprise you that the chancellor denied his request, concluding that the agreement not only prohibited modification on its face, but also that it created a form of lump-sum alimony, which is unmodifiable anyway, so that neither Ruth’e’s relationship nor Brian’s income were relevant.

Brian appealed, and it should not surprise you that the COA affirmed. You can read Judge Ishee’s opinion in the case of Korelitz v. Korelitz at the link.

This case highlights several points:

  • Hybrid alimony can be a tricky thing. The language above, with its edits, clearly shows the parties’ intent that these payments were not intended as periodic alimony, even though they were to cease on remarriage or death, and were deductible to Brian and income to Ruth’e. Often, though, the intent is not so clear, and if you leave it murky you are putting it into the hands of a judge who might not see it the same way you and your client did. A case in point is at this link.
  • Keep in mind that the default setting for alimony is periodic. In other words, if the court can’t make out what kind of creature was intended, it must consider it to be periodic.
  • I wonder whether Brian understood, when he initialed that handwritten language, that he was signing away his right to ask the court to do the very thing he took Ruth’e back to court to do? I’m sure the lawyer has a letter from Brian in her file documenting that she explained it thoroughly to him before he signed, and that she advised him not to agree to it.
  • I guess Brian’s argument at trial was that the agreement does say that the alimony was terminable on Ruth’e’s remarriage, so if the relationship is tantamount to marriage, then that clause should be invoked. Once the judge determined that it was lump-sum alimony, however, that boat sank.

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