Received Motion to reduce Alimony to $0

[Wendyclnj]

What is the name of your state (only U.S. law)? NJ
I was divorced 4 years ago and received limited duration non-modifiable (in duation or amount) alimony of $700/month through September 1, 2009 or upon the sale of the marital home, whichever is later. I pay the $2,500 mortgage and ALL the household expen. I made this sacrifice so that I would not have to uproot my 2 children. The alimony amount was determined based on what I needed in order to pay the mortgage.
My Exhusband pays no household bills but agreed to this arrangement because the house would be considered an investment to him and he is entitled to 50% of the proceeds from the sale of the house. The mortgage payments that I have made have reduced the principal balance by $20K and the house (even with the current conditions) has gone up in value by $250 since the divorce.

The problem is I just got married this month. I plan to place the house on the market next week. My new husband does not live in my house with me; he owns his own home and lives there. My new husband doesn't contribute to any of my household expenses (he has his own). My Ex-husbands income is currently twice mine. I will not be able to pay the mortgage without his $700 in alimony. What advice can you give for when I present my oral arguement? This isn't right. I've always been more than fair after being married over 13 years.What is the name of your state (only U.S. law)?

[seniorjudge]

What does the judgment in your lawsuit say in answer to your questions?

[Wendyclnj]

Re-Marriage and co-habitation was NOT addressed in my PSA

[seniorjudge]

Originally Posted by Wendyclnj

Re-Marriage and co-habitation was NOT addressed in my PSA

If your judgment says the award in non-modifiable, then what is ex-sweetie saying?

(Sorry...but your post is pretty muddled.)

[Wendyclnj]

non-modifiable.....is non-modifiable REALLY non-modifiable. Research I have done on-line show that in NJ there have been changes made to non-modifiable alimony cases. He must have something or know something .... otherwise why would he waste mine and the courts time. THANK GOD I have his wages garnished through the county probation dept.

[Zigner]

I'm sorry - but are you REALLY asking if you're allowed to collect alimony AFTER you remarry?

[seniorjudge]

Originally Posted by Zigner

I'm sorry - but are you REALLY asking if you're allowed to collect alimony AFTER you remarry?

Depending on the way the judgment in the lawsuit was written (which no one here has actually seen), yes, that is possible.

[Wendyclnj]

Yes, I am requesting to continue to receive the $700/month in Alimony in order to help ME pay the mortgage on OUR house. This is a tax benefit to him because the alimony reduces his taxible income. I'd be more than happy to have him pay $700 towards the mortgage until the house is sold OR reduce the HUGE profit he will receive from the sale of the house on a dollar-for-dollar basis.

[Wendyclnj]

Originally Posted by seniorjudge

Depending on the way the judgment in the lawsuit was written (which no one here has actually seen), yes, that is possible.

[TinkerBelleLuvr]

Alimony Requirements
A payment to or for a spouse under a divorce or separation instrument is alimony if the spouses do not file a joint return with each other and all the following requirements are met.

The payment is in cash.

The instrument does not designate the payment as not alimony.

The spouses are not members of the same household at the time the payments are made. This requirement applies only if the spouses are legally separated under a decree of divorce or separate maintenance.

There is no liability to make any payment (in cash or property) after the death of the recipient spouse.

The payment is not treated as child support.

http://www.irs.gov/publications/p504/ar02.html#d0e2027

You need to take out your court order and look to see if your payments would have had to continue even if you had died. From what you have stated, this does not sound like alimony, but, rather a property settlement.

If that is the case, you may be able to amend the last 3 year's worth of returns to remove the alimony from your income and your X would get to remove the deduction for alimony. My guess is that no one took this agreement to an accountant to see if it would fly.

Liability for payments after death of recipient spouse. If any part of payments you make must continue to be made for any period after your spouse's death, that part of your payments is not alimony whether made before or after the death. If all of the payments would continue, then none of the payments made before or after the death are alimony.

The divorce or separation instrument does not have to expressly state that the payments cease upon the death of your spouse if, for example, the liability for continued payments would end under state law.

Example.

You must pay your former spouse $10,000 in cash each year for 10 years. Your divorce decree states that the payments will end upon your former spouse's death. You must also pay your former spouse or your former spouse's estate $20,000 in cash each year for 10 years. The death of your spouse would not terminate these payments under state law.

The $10,000 annual payments may qualify as alimony. The $20,000 annual payments that do not end upon your former spouse's death are not alimony.

[Wendyclnj]

which was determined not by any formula etc., but determined DUE to the terms of the PSA.

[tuffbrk]

You need to post the specific language related to the alimony in your PSA, including the verbiage regarding it being non-modifiable, and any termination language.

Any reason why you didn't put it on the market PRIOR to marrying?

[TinkerBelleLuvr]

My suggestion is to take it to a tax attorney and/or a tax accountant. I have a feeling that y'all tried to turn a property settlement into alimony. If what I suspect is true, then, in fact it is NOT alimony and will need to be corrected.

There is a saying about leaving sleeping dogs to sleeping.

[Wendyclnj]

Didn't put it on the market PRIOR to marrying for several reasons....main reason is because my daughter is going to be a senior in HS and gets her license later this fall. She is (is able to) stay in her H.S. but transportation to there is impossible as I leave for work at 6:30am. She needs to have her license before I sell and move.

The exact wording of my PSA under Alimony:

Commencing the first Friday following the execution of this Agreement, the Husband shall pay non-modifiable limited duration alimony to the Wife in the amount of $700 per month ($162 per week), through 9/1/09 or upon the sale of the marital home, whichever is later. The alimony obligation shall terminate upon the expiration of its term, or upon the death of the Wife. In all other respects, such alimony shall not be modifiable in duration or amount for any reason. Such alimony shall be considered alimony income to the Wife and deducted as alimony payment by the husband.

DOES that Help??? Thanks again.

[TinkerBelleLuvr]

WHEN does the daughter graduate and/or turn 18? This really is not looking like alimony here.

Child support. A payment that is specifically designated as child support or treated as specifically designated as child support under your divorce or separation instrument is not alimony. The amount of child support may vary over time. Child support payments are not deductible by the payer and are not taxable to the payee.

Specifically designated as child support. A payment will be treated as specifically designated as child support to the extent that the payment is reduced either:
On the happening of a contingency relating to your child, or

At a time that can be clearly associated with the contingency.
A payment may be treated as specifically designated as child support even if other separate payments are specifically designated as child support.

Contingency relating to your child. A contingency relates to your child if it depends on any event relating to that child. It does not matter whether the event is certain or likely to occur. Events relating to your child include the child's:

• Becoming employed,
• Dying,
• Leaving the household,
• Leaving school,
• Marrying, or
• Reaching a specified age or income level.

Clearly associated with a contingency. Payments that would otherwise qualify as alimony are presumed to be reduced at a time clearly associated with the happening of a contingency relating to your child only in the following situations.
The payments are to be reduced not more than 6 months before or after the date the child will reach 18, 21, or local age of majority.
The payments are to be reduced on two or more occasions that occur not more than 1 year before or after a different one of your children reaches a certain age from 18 to 24. This certain age must be the same for each child, but need not be a whole number of years.

In all other situations, reductions in payments are not treated as clearly associated with the happening of a contingency relating to your child.

http://www.irs.gov/publications/p504/ar02.html#d0e2525