In 2014 I wrote about a child
support trap. In this article I described the trap happening when
two parents agree to change child
support between themselves without court approval. After years
of following the out of court agreement, the parent who received less
support files a contempt action. Typically the court will enforce
the order and order payment of back child support even if the out of
court agreement is fair, in writing, and signed by the parties. The
out of court agreement is not recognized as valid for any reduced
payments made before the filing of the contempt. A similar fact
patern was the subject of a case involving alimony.
In the case of Smith
v. Smith, Mass. App. Ct. No. 17-P-765 (6/7/2018) the divorce
left the Husband paying alimony to the Wife. Over the years, the
parties entered into a series of agreements resulting in the Husband
paying money for the benefit of the parties' adult children and
reducing the amount of alimony paid to the Wife. After a number of
years of these reduced payments, the Wife filed a contempt because
the payments by the Husband were less than the court order. Unlike
cases involving child support, the Husband argued equitable defenses
based on “detrimental reliance” called laches or estoppel. The
Court did not rule on the detrimental reliance argument. Instead,
the Court ruled that alimony can be modified retroactively to
consider the agreements of the parties. The retroactive modification
must be based on all of the statutory factors that a Judge is require
and permitted to consider when making an alimony decision. The
Appeals Court sent the case back to the trial judge to make a
decision based on the alimony factors. This probably will cause a
second trial for the parties but it is likely that the Husband will
have some benefit from a retroactive alimony modification. However,
if the Husband had a significant increase in income or the Wife had a
significant decrease, it is possible that the Husband could end up
paying more in alimony than the original order.
The best course of action and the
correct cause of action is that if the parties make an agreement to
modify alimony or child support that they should seek court approval
of the agreement. Massachusetts has a simplified procedure for
modifications by agreement. They are typically approved based on the
documents only and don't require that the parties physically appear
in court.
If the parties don't want to seek court
approval then they run the risk of one party paying large sums of
money for arrears of alimony or child support. In this instance,
they should put their agreement in writing and each party should sign
the agreement before a notary public. While no court has approved
this, I have a suggestion on how to write the agreement.
Massachusetts does allow alimony to be paid “in kind.” This
means that alimony can be paid directly to creditors instead of to
the ex-spouse. As an example, if the wife has a history of not
paying the mortgage, then the court may order the Husband to pay a
portion of alimony each month to the mortgage company and the balance
to be paid to the Wife. This concept can be applied to out of court
agreements. Using the Smith case as an example, I can
illustrate my suggestion.
In the Smith case, the Husband
was ordered to pay $650.00 per week. One of the reasons for reduction
of alimony was that the Husband paid tuition for the daughter's
graduate school tuition. The could have written an agreement that
state that the two parties agree to pay $400.00 per week for the
daughter's tuition with each party paying $200.00 per week. They
could agree that the Husband will pay the Wife's $200.00 per week
directly to the school and pay the wife the remainder of $450.00 per
week. This could be viewed as a payment in kind and may not be
considered a contempt. The problem with this is that the Wife would
be taxed on the $200.00 per week and the Husband would have a tax
deduction.
When considering an agreement to change
a child support or alimony award, the best way to proceed is to
consult an experienced family law
attorney who can draft an agreement and submit it to the court
for approval.
