202007.05
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Thinking of Entering into an Alimony Agreement: Don’t Get ‘Stuck’ If Your Circumstances Change

A recent decision by the Superior Court of Pennsylvania illustrates what can go wrong when you enter into an alimony agreement, then experience a change in circumstances.

Alimony Agreement

In Rosiecki v. Rosiecki, a divorcing couple entered into a marital settlement agreement before a divorce master. In their agreement, the couple converted a spousal support order to alimony pendente lite, which is monetary support issued to a spouse during divorce litigation, and agreed that when their divorce was finalized the husband would pay the wife $900 per month as alimony. The agreement also provided that the alimony payments would continue until four parcels of real estate that were titled in the husband’s name were sold and provided for a reduction in the alimony payment as each property was sold.

The agreement was incorporated but not merged into the final divorce decree that was entered on Jan. 21, 2010, meaning that it was a contract between the parties and not ordered by the court. On Jan. 7, 2019, the husband filed an emergency petition to terminate alimony and requested a hearing, arguing that he could no longer afford to make the alimony payments because he was “out of work” and experiencing health problems. None of the four properties had been sold.

The trial court granted a motion by the wife to dismiss the husband’s petition, finding that the terms of the agreement were “clear and unambiguous and provide no language for modification, extension or termination.” The court further found that it was without jurisdiction to modify the terms of the agreement because the alimony was awarded pursuant to a “contractual agreement entered into by both parties, who swore under oath to their understanding of the agreement.”

The husband appealed to the Superior Court, citing the section of Pennsylvania’s Divorce Code that allows for modification or termination of alimony ordered by a court upon changed circumstances of either party of a substantial and continuing nature.

Superior Court Decision

In ruling in favor of the wife, the Superior Court noted the distinction between court-ordered alimony and alimony that derives from a contractual agreement between the parties:

As noted by the trial court, Husband’s alimony obligation arose from the parties’ agreement and not from a court-ordered alimony award. As such, the trial court’s authority was limited by the terms of the parties’ agreement. … Since the agreement did not permit judicial modifications, the trial court had no authority to terminate Husband’s alimony obligation without the parties’ consent.

Conclusion

The takeaway: When entering a marital settlement agreement, it is important to know what you are agreeing to and what the potential consequences may be. If you wish to keep open the possibility for a court to modify your alimony terms if circumstances change, the agreement must contain language to that effect. Otherwise, be prepared to live with your contract, regardless of what the future holds.