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Law Matters / Informal agreement on alimony not binding

Published 11:51 am, Tuesday, November 6, 2012
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What happens if you cannot afford to pay the alimony amount that the court ordered you to pay?

You phone your ex-spouse and say, "Honey, I know we didn't always see eye to eye, but surely you will agree that times have changed, and money isn't what it used to be. You know I don't make nearly what I used to make, and my investments are down. I am going to pay you less, OK?"

Even if your ex agrees and gives you permission to pay less than the court order, be aware that this is not a legal modification of a court order. Only the court can modify a court order. Agreements between two people are not legally binding. The only way to change a court order is to have a judge modify the existing order and for that, you must go back to court.

Without a court modification in alimony, if your former spouse agreed to take less but then had a change of heart and wanted you to pay the court-ordered amount, you would be obligated to pay the higher amount. The only way to modify an existing court order is to go back to court and have a judge enter a new order.

The legal standard for modifying a court order is whether there has been a substantial change in circumstances. "Substantial" means a change of at least 15 percent -- either higher, or lower. If the court ordered you to pay alimony of $100 per week, in order for the change to be "substantial," it would have to be a difference of at least $15 higher or lower.

The only way to change a court order is to file with the court a motion to modify. You must serve this motion on the opposing party. Once you serve the motion to modify on the other party, and the motion is returned and filed with the court, the modification may be retroactive to the date service was made. In the meantime, while the motion is pending and before the court enters, you must continue to pay the court-ordered amount.

If you both agree to the modification, the court will modify the existing order by agreement. The bottom line is you can agree to change the court orders, but agreements made between parties are not legally binding. Even if you agree to the change, in order for it to be legally binding and enforceable, you must go back to court.

Susan F. Filan is a lawyer with a practice in Westport. She is a former state prosecutor and has been a legal analyst for NBC News, MSNBC and CNN.