I am considering going back to court to reduce the maintenance that I have to pay to my ex-wife (we had a 25-year marriage). We have three children together, and after the divorce I stayed in the home and my children stayed with me.
I have been the primary caregiver for my children ever since the divorce. She has, over the past five years, taken them out to eat one to two times a week, but they have never stayed over at her house. This was their choice. In addition, I have been fortunate enough to be able to pay for their college educations.
During the divorce negotiations I agreed to give her more than 50% of the family assets and she was able to buy a house with more net equity than the house I stayed in. I also agreed to modifiable maintenance of $3,000 a month, 50% of the 401(k) and pension. I wanted her set up for success.
So now that my children are grown and the last one is in the final year of college, I am planning on selling the house and downsizing so that I can save more for retirement and pay off the moderate debt I’ve accumulated to pay for their college educations.
The largest single expense I have is the maintenance, and I don’t feel that it is fair that I have to go to work every day and she still hasn’t gotten a steady job.
My question is how do I approach this problem? When is it fair to go back to court to reduce maintenance? I am frustrated because she never would get a job once the children were born despite never-ending promises to do so in the future when we discussed major expenditures that I felt we couldn’t afford at the time.
She still has not gotten a job. This essentially makes it harder for me to do anything without feeling guilty. My other concern is how my ex-wife will portray the situation to my children and how they will react. My lawyer felt it would be no problem getting the maintenance reduced significantly.
It was decent and right for you to make sure the mother of your children would never have to want for anything.
Your divorce settlement was generous and, after 25 years of marriage, I have no doubt that she worked hard helping to raise your kids. You would, of course, know more about that than I. Kudos for doing the right thing when so many divorcing spouses can’t see beyond their own resentments.
Your divorce settlement also gave your children peace of mind, which is difficult to put a price on. Whatever the nature of their relationship, I assume they love her very much. It’s hard to untangle oneself from the emotional ties as well as the financial ties, but you seem ready.
Once you make a settlement in a divorce, it’s difficult to revisit it, especially if there were no conditions set at the time. If a divorce settlement doesn’t stipulate that the lower-earning partner had to find a full- or part-time job within a certain period, it’s often difficult to change.
Including “modifiable maintenance” in your divorce settlement was a smart move on your part and, given your wish to reduce it, is a good start. That, and the fact that the rest of the settlement was generous, will bode well for you if this gets to court.
Your wife may argue, with reason, that she was married to from the beginning of your career throughout the peak earning years, and raising children and managing a home is a full-time job, and a significant one, in itself.
Randy Kessler, who wrote the book, “Divorce: Protect Yourself, Your Kids, and Your Future,” and practices family law in Atlanta, Ga., agrees. “This is a tough one,” he says. He suggests a “pre-filing mediation” where you can air your views and put them to your former wife.
You may be able to reach a compromise without hiring a lawyer (and, given that you pay your wife’s bills, paying for two lawyers to boot) and resolve this without having to go to court. When a divorce lawyer advises you to avoid hiring a divorce lawyer, it’s a good time to listen!
There’s another reason why this would be a good idea. You will also get insight into your wife’s thinking should you decide to challenge the divorce settlement in court. That will help you and your lawyer formulate a rebuttal to your wife’s case, if she wants to maintain the current maintenance.
But Kessler warns, “You did agree to the deal at the time and if you do not like paying so much for so long, a judge may well say, ‘Why did you agree to it?’ There are many possible answers, including, ‘I wanted it over so badly,’ or, ‘It seemed fair at the time.’”
Unless your financial circumstances have changed dramatically, a judge may decide not to reduce the maintenance. Your wife’s lifestyle during your marriage and her current living expenses will likely play a role in that. Until it’s in the hands of the judge, we don’t know.
There is, however, only one way to find out.
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