Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)
314.727.4880

Should You Opt for Open-Ended or Contractual Alimony?

It was 9:00 AM and the trial between my client, the wife, and her husband a senior executive of a large St. Louis company was about to begin when the husband whispered to his lawyer: “I think we need to talk”. With that, his attorney asked for a delay so that we could try once more to settle the case.

 

The only remaining issue was spousal support and, more specifically, the amount that the husband was to pay my client each month, and for how long. Until then, the husband had been unwilling to meet what we were requiring and both parties agreed it was time to let the judge decide. Now it appeared that the husband had rethought his position and there might be a chance to wrap this up without a trial.

 

Spousal support, otherwise known as “maintenance”, is often the sticking point where there is a long-term marriage (22 years in this example) and a significant earnings disparity between spouses. The case for maintenance becomes particularly compelling if the lower earning spouse is also without significant work experience, usually because that spouse spent most of the marriage caring for the children or the household.

 

These circumstances invite the court to contrast the needs of the prospective recipient, which can include maintaining the lifestyle to which they are accustomed, and their ability to provide for those needs, with the financial resources of prospective payer. The typical result is an award that can range from a few hundred to several thousand dollars a month, payable until either party dies or the recipient remarries.

 

Rather than let the judge decide, many couples negotiate a fixed payment for a defined period of time. Sometimes couples agree to continue the payment even if the payee remarries.

 

There are pitfalls to either option.

 

Open-ended schedules usually mean more litigation down-the-road, either because of a reduction in the provider’s income, or because the recipient’s cost of living has increased. Recipients sometimes drag their more well-to-do “ex” back into court because their former spouse’s income, and thus their ability to pay, has increased substantially since the original order.

 

Contractual schedules have their own risks as well. The court has no power to intervene should the income or costs of either party change drastically. Plus, there’s no extension for the recipient that hasn’t found a new life partner by the schedule’s expiration.

 

Not surprisingly, most well-to-do payers seek the certainty of a contractual plan. Their greatest fear is an unending schedule of ever increasing payments to a former mate that would rather “live in sin” than remarry and cut off the monthly supplement.

 

Yet, many recipients opt for contractual maintenance as well. The reason is the disparity in power and resources…real and perceived… between themselves and their mate. They assume, quite reasonably, that there will be little to prevent their “ex” from refiling again and again in the future to have their payment reduced. For a highly compensated person paying $100,000 or more in alimony each year, investing a few thousand dollars to retry the issue offers an appealing risk/reward profile. However, the costs of defending these suits can be financially devastating for the less well-off spouse.

 

Now, back to our couple. They agreed to a contractual plan, and one that allowed the wife to remarry without losing her support. I think both realized that each could come up short had they left the decision up to the judge.

 

The husband recognized that his wife, not yet 50 and in a great health, was likely to live a very long time. She was also fiercely independent, so the prospects for her soon remarrying did not seem all that promising.

 

For the wife, she recognized that this independence and her own well-developed career could weigh against her as the judge assessed how much assistance she really required in meeting her own needs.