When Non-Modifiable Alimony Is Modifiable

In their separation agreement, Mr. Moore promised to pay his wife alimony for seven years. They both agreed that alimony would be non-modifiable by the court. But the wife remarried before the end of the seven years. Mr. Moore stopped paying support. His reasoning was that Maryland law provides for termination of alimony on marriage. His wife argued that the non-modfiable clause in agreement should control.

The Maryland Court of Appeals agreed with the husband. It said that if the parties wanted something different than the law in their agreement they could have said so. As for the non-modifiable provision, the court said that modification was not termination, although the two dissenting judges said that it was the most radical type of modification imaginable. Moore v. Jacobsen, 373 Md. 185, 817 A.2d 212 (2003).

Many agreements do not have a cohabitation clause. In such a case, would the court terminate alimony upon cohabitation instead of remarriage? Probably not although no one has tried it yet. While there is case law that says alimony may be modified on cohabitation based on economic considerations, it is not a termination event in the Maryland statute.

When Alimony Is Not Alimony

In a recent U.S. Tax Court case, my client had signed a separation agreement that said certain payments by her husband would be treated as alimony. However, she did not report any of the payments as income and the IRS was coming after her for taxes for several years.

The agreement provided that the husband would keep the marital residence and buy the wife a new house. The husband paid the mortgage on the new house. The mortgage payments were characterized as support and alimony.

I argued that these payments did not meet the tests for alimony set forth in IRS Code Section 71. Alimony must terminate on death of either party or remarriage of the payee. Since the agreement was binding on the heirs, and it said in no event would the wife have to pay the mortgage, the husband’s obligation to pay the mortgage would survive his death or the wife’s death. And the wife had remarried twice already, but the husband continued to pay the mortgage.

The IRS argued that the parties’ agreement said it was alimony, but the Tax Court has ruled in the past that it does not matter how the parties have characterized the payment in the agreement — the statute controls as to whether it is alimony or not. Don’t feel too bad for the IRS though. They can still go after the husband for the tax. The reason for Section 71 is to prevent high income tax payers from turning a tax free property settlement into deductible alimony.

Welcome to Maryland Divorce Legal Crier

e-Book How to File For Divorce in Maryland.
James. J Gross is the co-author of the e-book in PDF format called How to File For Divorce in Maryland, available for download today on DivorceNet.Com for $19.95.

He is also the author or co-author of the following books which are available at Amazon.com:

  • Fathers’ Rights: The Best Interest of Your Child Includes You
  • File for Divorce in Maryland, Virginia and Washington DC
  • Money and Divorce

He has been selected by Washingtonian Magazine and Maryland Superlawyers as one of the region’s top divorce lawyers.

Mr. Gross is a practicing partner in the Chevy Chase, Maryland law firm Thyden Gross and Callahan. He is the author of the blogs Maryland Divorce Legal Crier, The Daily Answer Desk, and Not Just Every Other Weekend and the e-mail newsletter In the Courts.

Mr. Gross is a seasoned and experienced divorce lawyer and eminently qualified to answer your questions, provide legal assistance, and to speak with authority on divorce, child custody issues, child support, property distribution, alimony, and family law topics.

We know that you will enjoy reading his insightful commentary and thoughtful blog postings.

One Order, One Place, One Time

UIFSA works together with FFCCOA to created one controlling support order for alimony and child support — one order, one time, one place.

To accomplish this, UIFSA establishes priorities to determine which state has continuing exclusive jurisdiction over a support order.

The state with continuing exclusive jurisdiction is the only state that can modify a support order.

Full Faith and Credit

Although there is a full faith and credit clause in the United States Constitution, 28 U.S.C. 1738, it was not clear that one state’s child support order is enforceable by another state. And even after UIFSA was enacted, parties continued to jump from state to state to try to pay less child support or avoid paying child support.

So Congress enacted the Full Faith and Credit for Child Support Orders Act (“FFCCSOA), 28 U.S.C. 1738B. The law requires that all states territories give full faith and credit to child support orders of sister states as long as the sister state properly exercised jurisdiction over the parties and the subject matter.

UIFSA-Interstate Child Support Law

All states were required to adopt the Uniform Interstate Family Support Act (“UIFSA”) when President Clinton signed the Welfare Reform Act on August 22, 1996.

UIFSA replaced URESA and RURESA . The old statutes allowed a parent to move to another state and have the new state reduce his or her child support. UIFSA provides that the state where the original divorce was obtained will have continuing exclusive jurisdiction over child support.

If both parents leave the original state of divorce, and you are a father seeking modification of child support, you must go to the mother’s state to ask the court for modification, and vice versa.

Wage Withholding Orders

There is a standard form for wage withholding orders that are sent to employers for child support obligations. It is called an Order/Notice to Withhold Income for Child Support.

It is a federal form adopted by Section 324 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996; 42 U.S.C. 652(a)(11) and 654(9)(E).

You can download the form for free:

  • here in PDF format
  • here in Word 95 format

Instructions are here in PDF format.

Hague Convention Defenses

These are the defenses that your spouse can raise under the Hague Convention:



Custody Rights Defenses

  • You did not have custody rights.
  • You were not actually exercising your custody rights at the time of removal.

Wrongful Removal or Retention Defenses

  • You agreed to the removal.
  • You acquiesced later to the removal.

    Defenses Related to Child

    • The Grave Risk Defense. There is a grave risk that his or her return would expose the child to physical or psychological harm or other place the child in an intolerable situation.
    • The child objects and has attained an appropriate age and maturity.
    • The child has been integrated into his community and environment for over a year.

    Returning the Children

    If your children have been abducted unlawfully from the U.S. to another country that has signed the Hague Convention, you file two originals of an Application for each child with the State Department or the central authority of the other country. Here are the instructions. Be sure to sign and date the applications.

    Fax your completed Hague application to CA/OCS/CI, fax number 202-736-9133. Send originals and supporting documents by mail, express mail, or courier service to:

    Department of State

    Office of Children’s Issues, SA-29

    U.S. Department of State

    2201 C Street, NW

    Washington, DC 20520

    The State Department will then transmit the Application to the central authority of the country where the child is believed to be. The central authority of that country is to take all appropriate measures to obtain the voluntary return of the child.

    The courts and administrative agencies are required to act expeditiously in proceedings for return of the child.

    The One Year Rule

    • If it has been less than one year since the abduction, the authority shall order the child returned forthwith.
    • If it has been more than one year, the authority shall order the child returned, unless it is demonstrated that the child is now settled in the new environment.

    Therefore, file your action within one year to eliminate the second option. You must file a lawsuit action within the year, not just your application. In retention cases, the year starts when the child is unlawfully detained. So if you gave your spouse permission to take the children to visit her parents in Spain for a month, and she does not return, the year starts at the end of the month.

    Next: Defenses to Returning the Children