Attorney-at-Law

OH DEATH, WHERE IS THY STING?

In Uncategorized on 07/02/2012 at 17:12

In the modification of a divorce decree, that’s where, according to Judge Marvel, in a Section 7463 “don’t quote me”, James P. Chiavacci and Joyce L. Chiavacci, 2012 T.C. Sum. Op. 63, filed 7/2/12.

Jim and Leigh parted ways years ago. Jim asked for a modification of alimony awarded in the judgment of divorce (which expressly stated alimony ended with death or remarriage). Leigh said no, but the divorce court judge said “talk among yourselves”, so they negotiated a $20,000 buyout.

Unfortunately, Jim’s lawyer just sent Leigh’s lawyer the bank check from Jim, and asked Leigh’s lawyer to draft up something for the divorce court that the alimony portion of the judgment of divorce was modified. Jim’s lawyer also represented Jim in Tax Court.

Judge Marvel: “…the district court entered an order amending the divorce judgment (amending order). The amending order contains the following statement: ‘By agreement of the parties, Spousal Support is terminated effective September 2, 2007. In all other respects, the Divorce Judgment dated January 10, 1994, as amended on August 31, 2001, remains in full force and effect.’ The amending order makes no reference to Mr. Chiavacci’s $20,000 payment to Ms. Charles.” 2012 T.C. Sum. Op. 63, at p. 5.

That sinks Jim. The $20,000 payment is a debt from Jim to Leigh, not alimony any more. By terminating the entire alimony obligation, the “death or remarriage” clause was also terminated, and under State law (Maine in this case), while alimony terminates with death, debts don’t. That Leigh was alive when she got the check “mox nix”, as we old Army types say, “don’t matter”.

Divorce lawyers, please don’t forget to add the words “this obligation terminates with death” to every document, every letter, every modification. I don’t name Jim’s lawyer, because I’m sure Jim will make him suffer enough.

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