Wants to cut alimony 50% because 'can't' find comparable job

#1

Divorced in 2015 via a mutually agreed Consent Order signed by a judge. Ex-husband has been paying alimony for 3.4 years at $1000/mo and has 3.5 years left. He is also responsible for health insurance for 2 children (ages 22 and 21) until they turn 26 and also makes a ‘child support’ payment directly to the 2 children of $2400 per year each, which will stop when each reaches age 24 (this was to help with college expenses). At the time of the divorce (2015) he had a job paying $85k which he left voluntarily to move to Asheville, NC and obtained a job there for approx $65k. He was apparently fired from that job a few months ago and has recently obtained a job making approx $40k. This entire time he has lived w/a girlfriend who is a CPA/Accountant, so he has shared living expenses.

He just had a lawyer send me an email saying he wants to cut both alimony and child support in half or else he will seek court modification. My question is this: I know a change in financial circumstances sometimes warrants a reduction in alimony/CS payments BUT I believe he is intentionally ‘downgrading’ himself to a lower-paying job to avoid paying, and I also believe he was fired from his most recent ($65k) job for poor performance. Should I respond to his letter with a counter-offer for a slight reduction and state that if the counter-offer is not taken, I am prepared to go to court for contempt of court charges and put everything in a judges hands? I know that is risky, but I want him to PROVE that he has tried to find a comparable job (ie. he has applied for numerous jobs and gotten rejection letters, he has attended job fairs, etc) because I can BET that he has done none of that. He also had a ‘tiny house’ built in his backyard a couple of years ago for friends and family to stay in but most of the time it is vacant so he could easily put it on airbnb to make extra money to pay me. He also has annual passes to the Biltmore Estate, travels alot etc. I, on the other hand, am self-employed, work approx 60 hrs/week to make $39k/year and have to pay my own (expensive) health insurance and have a history of breast cancer, so I can’t just cancel my insurance and wing it. I can easily prove I need his $1000/mo alimony to pay my essential bills.

So is a counter-offer advisable and if so, would I mention that if we cannot agree I intend to show that he is downgrading his employment? or would I purposely NOT mention that until we are in front of a judge? And also, can I ask a judge to subpoena his employment records to see why he was fired? Or should I completely ignore his lawyer’s letter and let that non-answer speak for itself and force him file for an alimony modification? Keep in mind I have no money for attorneys, so I’d be pro se on this if we went to court.

Oh, and also the Consent Order says he has to maintain $500k life insurance policy, which I am betting he has let lapse, so technically isn’t he in contempt of court if he cannot prove he has an active policy? Would I mention that in a counter-offer?

Thanks for any help you can provide.

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#2

Since an attorney contacted you before filing any motions to modify alimony, it might be a good idea to respond to the attorney and hopefully keep any settlements out of court/trial. If you do respond, you will want to explain your position for not agreeing to their request, so you will want to outline your belief that your ex-husband is voluntarily underemployed.

Alimony can be modified upon a showing of a substantial change in circumstances since the entry of the current alimony order. Being fired and taking jobs making less than earning potential for the purpose of avoiding an alimony obligation or for the purpose of decreasing an alimony obligation will not be a substantial change in circumstances.

Until the alimony order is modified, if your ex-husband does not follow it’s terms, then he could be held in contempt of court if his failure to follow the order is willful.

And yes, if he is required to maintain a $500,000 life insurance policy and it has lapsed before his obligation to maintain it expires, then he could be held in contempt of court for not following the court order. I would not mention this in your response but it would be a good idea to ask for current documentation regarding this life insurance policy (that way you can see for yourself whether or not the policy is still active).


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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