The team at Dodson Parker Behm & Capparella, PC shares updates and thoughts on developments in the law.

How Taxable Income Can Impact A Spouse’s Ability To Pay Alimony

August 1, 2019

Alimony in futuro is more likely to be awarded after a lengthy marriage, when one spouse is more economically disadvantaged than the other, and it’s typically awarded for life or until the economically disadvantaged spouse gets remarried. Donald Capparella recently argued two separate cases addressing alimony in futuro at the Court of Appeals. In the case discussed here, a husband was wrongfully granted a reduction in his alimony obligation by the trial court, which was reversed on appeal. Attorney’s fees to the former wife were also granted, as well as a substantial arrearage for unpaid alimony. On appeal, the main factor reviewed was the economically advantaged spouse’s ability to pay.

In this case, the husband, who was the economically advantaged spouse, had been ordered to pay $6,000.00 per month in alimony at the time of divorce. The trial court later granted a motion reducing the $6,000 alimony in futuro, to $4,300 rehabilitative alimony for the duration of four months. The wife appealed the modification and the Court of Appeals vacated the trial court’s ruling, which reinstated the original alimony in futuro order of $6,000. On remand, the trial court awarded the wife an amount based on the difference of the two orders issued.  The wife appealed and the Court of Appeals issued an opinion again affirming the original $6,000 order, and modifying the trial courts arrearage judgment.

Before the Court of Appeals issued its second opinion, the husband filed a motion to modify or terminate the alimony, based upon a material chance of circumstances. The husband had undergone surgeries, became disabled, and was unable to work. Therefore, the husband claimed he was unable to meet his obligation of alimony. Wife responded to husband’s motion asserting that husband still had the ability to pay despite his disability and her need for alimony remained the same. The wife also asked that she be awarded attorney fees, and that the husband be held in contempt for not paying his alimony as ordered. The trial court held a trial and found that the husband had a material change in circumstance and granted a reduction of his alimony obligation to $3,900. The trial court also found the husband was in contempt and ordered him to pay arrearages based on the reduced amount.

After meeting with the wife and reviewing the case Donald Capparella appealed to the Court of Appeals to hear a third appeal in this case. Capparella argued that even though the husband suffered a material change in circumstance affecting his gross income, his disability did not affect his ability to pay. Husband’s post-disability income was essentially the same as before, because he was receiving hundreds of thousands of dollars in disability income.

The Court of Appeals again found that the trial court had erroneously reduced the wife’s award of alimony, and ordered the original amount of $6,000 be reinstated, ordered the arrearages to be recalculated in accordance with the original amount, and granted the wife’s request for attorney fees at both the trial and appellate courts.

Donald Capparella recently represented another client on an alimony issue. This client was ordered to pay a higher than reasonable amount for his circumstances. To read more about this case click here.

To read the full opinion of this case click here.


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An excellent read featuring DPBC’s @MargaretLBehm alongside Jeanie Nelson and Juli Mosley, as they seek to honor the fight of our suffragist forbearers.

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