John Vitela: Can I Go After My Ex Husband’s New Wife For Alimony?

Typically the answer is no, but call for a free consultation to discuss your specification situation. In most states, a substantial change in need or a change in the ability to pay may be grounds for a post-judgment modification of spousal support/alimony. You may be able to lower what you pay, increase what you receive or have payments terminated all together.

Agreement To Modify Spousal Support/AlimonyCost Of Living Adjustment Clause

A cost of living adjustment clause in your original divorce decree means that spousal support/alimony payments will increase at a rate equal to the annual cost of living. Including a COLA clause in your original decree will keep down the need to have to modify the spousal support/alimony.

Escalator Clause

An escalator clause can be included in an original divorce decree to insure that the recipient of spousal support/alimony receives an automatic share of any increase in the payer’s earnings. For instance, if your ex-spouse is a member of the armed forces and receives a yearly cost of living raise, you would automatically receive a pre-determined portion of that raise.

Temporary Modification of Spousal Support/Alimony

Illness, loss of job or other conditions can cause a temporary hardship. If the spouse receiving spousal support/alimony loses his/her job or becomes ill, the courts can increase the amount of support temporarily. The same is for the payers. If he/she loses a job or becomes ill or unable to maintain the court-ordered support, the courts can decrease support temporarily. At the end of a set period of time support payments revert back to the previous amount.

Change of Circumstance

If a spouse receiving alimony has a substantial increase in income, the payer can request a downward modification of support based on the change of circumstance. The spouse receiving support may request an increase in support if his/her ex-spouse has a substantial increase in income. An increase in income is not the only reason one can modify support due to changed circumstances.

Examples of a change of circumstances

• Change in Law: State laws pertaining to support change periodically. When a divorce law changes, this can constitute the change of circumstance that is needed to file for modification of support.

• Cohabitation: Support may be reduced or terminated if an ex-spouse cohabitates with another person. If a person is living intimately with a partner, they are cohabitating. If the recipient of support feels a decrease in support is unfair it is his/her obligation to prove there is a need for the support.

• Cost of Living Increase: When inflation reduces the value of support payments, the recipient may request a modification based on an increased cost of living as a changed circumstance and request an increase. A request can also be made when the pay or of alimony has a substantial increase in income.

• Decreased Need for Support: When a recipient’s need for support decreases or ceases, the court may reduce or terminate support at the payers’ request. This can happen when the recipient gets a job with a higher salary, remarries, or begins to cohabitate with another person.

• Disability: If payers of alimony become unable to support him/her due to a physical or mental condition, support may be modified. If the recipient becomes disabled, he/she can request a modification to increase support. If the payer becomes disabled, he/she can request a modification to decrease support.

• Financial Emergency: A financial emergency happens, for instance when a spouse has to pay large medical bills or has to pay out money due to some other unexpected emergency. In such cases, either spouse may request for a decrease or increase in the amount of support paid or received.

• New Support Obligation: If an ex-spouse paying support remarries and has a child, the court may reduce the amount of support paid since it would constitute a hardship to pay current support and meet his/her new obligations. This does not apply to an ex-spouse who marries and voluntarily takes on the responsibility of supporting stepchildren.

• The spouse receiving the alimony payment may no longer need the support, and the paying spouse would probably like to stop making payments.

• The paying spouse’s legal obligation for alimony ends when the supported spouse gets remarried. Voluntary support can continue, however, and payments can cease at any time without court intervention. In the event that the remarriage is annulled (legally cancelled or void), the court will revisit alimony once again based upon each spouse’s circumstances. If an agreement is in place prior to a remarriage which states that alimony will continue (even if the supported spouse gets remarried), it will take priority over the court’s remarriage ruling. It’s important to note that a lump sum alimony payment would not be affected in the event of a remarriage, and the supported spouse wouldn’t be required to pay back any of the lump sum they received.

• Assume a scenario where the supported spouse becomes romantically involved with a significant other, and they decide to live together (also known as “cohabitation”). In this case, spousal support is still a legal obligation for the paying spouse. The same goes for a change in financial circumstances. If the supported spouse earns a large pay increase at work, the alimony doesn’t change. The two individuals can discuss the new situation, and if in agreement, make a modification to the original terms. If the supported spouse doesn’t agree to any changes, the paying spouse can ask the court to get involved.

With sufficient proof of a change in circumstances, the court may lower or terminate the paying spouse’s alimony obligation. Note that the court will only examine the supported spouse’s new financial situation without regard to their new partner’s finances. In cases of non-romantic cohabitation (the supported spouse decides to get a roommate), the court will examine the supported spouse’s new financial situation as well, and decide if a modification (or termination) of alimony is necessary.

• Keep a personal account: If you’ve been single for a while, you’re used to being on your own. Having a personal checking account and a debit card will allow you to transition into a financial partnership without feeling like you’ve disappeared.

• Use a joint account for household expenses: To pay for things like mortgages, utilities, and food. If the house belongs to both of you so should the bills.

• Don’t keep too much separate: Having one person responsible for the water bill and the other taking care of the electricity is a recipe for trouble. Unless you have total control over incurring the expense, sooner or later you’ll argue over the size of the bill.

• Gradually blend your finances together: As time goes by, put more expenses into the “joint” category. Working together will strengthen your marriage.

• Plan for a joint account shortage: Decide now what you’ll do if there’s not enough money in the joint account to cover the bills.

• Set up spending rules: Determine levels where a purchase needs to be discussed with your spouse. You’ll probably have one figure for joint expenses and another higher one for your personal money.

• Discuss debt: Talk about any debts either of you bring to the marriage: how they’ll be paid and how to keep the other partner from becoming legally responsible for them.

• Have a paycheck plan: Is your whole paycheck headed to the joint account, or only a portion of it? Decide this early on.

• Account for differences in income: Discuss what you’re going to do if one person’s income is significantly larger.

• Have a conversation about gift giving: Make sure you’re on the same page when it comes to buying gifts—not only for family, but for friends and co-workers as well.

• Talk about charitable giving: Some consider donating to charity as an important part of life, while others may view it as unimportant or even foolhardy. Make sure you agree on how you’ll handle charitable giving.

• Talk about your money style: Each of us has a unique relationship to money. We’ve been affected by our life experiences and our belief system. You don’t have to completely agree with each other, but it is good to understand how your spouse makes his or her decisions.

• Plan for the long term: Discuss where you’d like to be financially in five and 10 years. These long-term goals are important to you as individuals and as a couple.

• Discuss inheritances: This is especially important if you have children from your previous marriage. Avoid fights among the half-siblings after your passing by telling them about your plans.

• Plan to modify your system: It’s unlikely you’ll get everything right the first time. Schedule a time to revisit these issues sometime in the near future. That way, you can fix any problems before they become major issues for your marriage.

• Accept your differences: Part of the reason you love your spouse is that he or her is a little different than you, and that extends to their finances. Unless those differences threaten to ruin your finances, find ways to limit any damage and learn to live with your spouse.

The first step to making your ex pay support is to have an order signed by a Judge that requires payment. Until you have an order, you don’t have a requirement. Without a requirement to pay, you are simply hoping for the good graces of your ex. And that is no way to live. Now go back and review the order to make sure that it is indeed child support or alimony that is ordered, and that unpaid child support is past due. Assuming payment is past due and you, therefore, have an ex that is violating a judicial order, it’s time to gather evidence to prove your point. Gather Records That Prove Non-Payment.

Now you want to gather the proof that your ex is failing to pay. This is usually easy to do as your ex should be paying by check or money order, transfer to a bank account, an income withholding order, or depositing money. If your ex pays by check or money order, you will want to go online and pull records from your bank that show that the child support payment has not been deposited into your account. You can do this by pulling bank records for the time period in question. Deposits for most banks are listed at the top of each monthly statement, and a quick review of records can prove that payment was not made. If needed, don’t be afraid to pull cancelled checks. Remember, your goal should be to get your ex to pay now and, with any luck, pay in the future. Before you go see a lawyer, you want to make sure you have gathered exactly what the lawyer needs.

Ask The Court For The Child Support Enforcement Order Or Hold Your Ex In Contempt Of Court. Often this is done through a family law attorney. But whether you go it alone or with a lawyer’s help, you are going to be filing a pleading with the clerk of the court to re-open your closed case. As a technical matter, you can make these requests with a Motion for Enforcement, a Motion for Contempt, or a Motion for Order to Show Cause. In both cases, you are asking the Court to use its powers to fix the problem.
A Motion for Enforcement is the nicest option. Your remedy is straightforward — you want the problem fixed and you want your ex to comply with the Court’s directives.

In a Motion for Contempt, you are taking it up a notch. You are asking the Court to not only make your ex comply, but also hold your ex in contempt. The purpose of contempt is to compel compliance with a court order or compensate you because your ex is not doing what he or she is supposed to do.

An Order to Show Cause is the same idea, but the request comes from the Court instead of from you. You ask the Court to issue an Order to Show Cause, and the Court signs the order, commanding your ex to come to Court and Show Cause regarding why he or she is thumbing his or her nose at the court. Once a motion is filed, you need to get it to your ex. This can be done by traditional service of process with a process server, but it is not necessary.

Finally, you will call the Judge and get available dates and times to present your case to him or her. At the hearing, you present evidence to the Judge proving your case. Your attorney has the ability not only to give legal advice, but also to cross-examine your ex and ask him or her questions related to the failure to pay. To really drive home the point, the Judge could order that a warrant be issued for the arrest of your ex if payment is not made by a certain date. Also, the Judge has the ability to order your ex to pay a fine and attorney’s fees to you for having to hire a lawyer to fix the problem. Sometimes your ex learns his or her lesson, and the problem never happens again. But sometimes it is clear that this is going to be an ongoing problem. Below are some ways to fix the problem so it does not happen again.

Ask For An Income Withholding Order: If your ex won’t pay his child support or alimony, just cut him out as the middleman and get the money from his employer through an income withholding order. An income withholding order is an approved method to automatically require an employer to deduct a certain amount on a monthly basis from your ex’s pay before the paycheck goes out. This can be done with a simple order executed by the Judge directing the employer to withhold the money. The process often takes four to six weeks to complete.

Garnish Your Ex’s Wages: Similar to an income withholding order, you can request a garnishment of your ex’s wages or other money such as bank accounts. Unlike an income withholding order, a garnishment is available only for future payments and not past due payments. However, you can garnish money from a bank account.

Ask For The Sale Of Pre-Existing Assets: In certain circumstances you can request the Court order your ex to liquefy assets in order to pay the alimony and/or child support award.

Ask For A Lien On Property: What if your ex has money in real property and money is not available to garnish? You can ask the Court to put a lien on the property. This way, the property cannot be sold and will not have a clear title until the debt is repaid. Likewise if your ex has a rental property, you can ask the court to order that rental proceeds be paid to you directly from the tenant.

Ask To Put Your Ex In Jail Until He Or She Pays The Money: The home run remedy to the problem is to ask that your ex be thrown into jail unless and until payment is made. This is often the swiftest but most extreme remedy to get payment.

Child Living With Your Ex: What if the child is no longer living with you, but is living with your ex full-time? This is and can be a defense for your ex against any child maintenance obligation.

Deficiencies In The Order: A technical defense to contempt exists when there is deficiency in the legal order. An order that is too indefinite, overbroad, or does not define when payment should be made may need to be fixed before making a motion for contempt. Generally, the order to pay must have a specific time and place by which the payment must be made in order to avoid contempt. Otherwise, a motion for enforcement or clarification is needed.

Alimony Attorney Free Consultation

When you need a divorce lawyer for help with alimony in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help with alimony modification, child custody, child support, asset division, sale of real estate, property disuptes, debt division, and much more. We want to help you.