When preparing alimony agreements, one must be very careful with the language. The language in any type of agreement does not have to be overly intelligent. Many times lawyers like to use big words and Latin phrases to try to prove how smart they are.  Any alimony agreement, or any legal agreement for that matter, needs to be extremely clear and unambiguous by any reader.  The more words to clear things up, the better. I like even giving examples sometimes of what I mean when I prepare an agreement. Sometimes lawyers like to act too smart and it actually can come back to haunt them by leaving a lot of grey area in an agreement.

Courts interpret things that are not clear. For example, in one situation in Florida, a Trial Court found that the wife waived her right to petition for a modification of alimony, because it construed the parties’ prenuptial agreement to constitute a blend of property distribution and alimony. Prenuptial agreements limiting alimony to certain amounts are subject to judicial modification. By contrast, a true property settlement agreement is not subject to modification.  In the context of marital settlement agreements, parties may waive their right to seek a modification of alimony if the language in the agreement clearly and unambiguously expresses waiver or if the interpretation of the agreement as a whole can lead to no other conclusion but waiver. Here, the prenuptial agreement provided that the alimony payments would cease upon the wife’s death or remarriage. Therefore, the prenuptial agreement clearly contained an alimony provision and was not a true property settlement agreement. The prenuptial agreement was silent on modification, and the general waiver of alimony “except as otherwise provided” in the agreement was not specific enough to waive the wife’s right to seek a modification of alimony. 

In another case, the parties entered into a marital settlement agreement, wherein the former husband was required to pay durational alimony for a period of five (5) years with a direct Income Deduction Order every pay period. The former wife filed a Petition for Dissolution of Marriage seeking an Order directing compliance with the marital settlement agreement. The former husband filed a Motion in Opposition arguing that he was unable to pay alimony because the former wife had misrepresented her financial condition and because he had experienced a substantial change in circumstances. The Trial Court entered a Final Judgment approving the marital settlement agreement and finding that the former husband had not complied with its terms by failing to pay the agreed upon amounts of alimony. The former husband filed a Petition to Modify Alimony and for a rehearing and argued that he had lost his job and was currently unemployed.

The Trial Court denied the Motion treating it as a Motion for Rehearing. The former husband then filed another Petition for Modification and argued that a substantial change in circumstances rendered him unable to pay the alimony agreed upon in the marital settlement agreement. The record does not include a Final Order on the Petition. The former husband appealed the Final Judgment of Dissolution of Marriage. On appeal, the Court found held that the Trial Court properly found that the former husband must pay alimony as is set forth in the parties’ marital settlement agreement, but noted that its opinions does not preclude the former husband from proceeding on his pending Petition for Modification. 

In another case, a former wife filed a Motion to Enforce a parties’ marital settlement agreement.  Under the agreement the former husband was required to pay the former wife 30% of any bonus he received in one (1) year and 20% of any bonuses received each year thereafter as long as his alimony obligation persisted. The former husband calculated the former wife’s share from the net bonuses, but the former wife believed that she was entitled to a share of the gross bonuses and that he had significantly underpaid her.  The Trial Court correctly found that the parties intended the former wife’s share of the former husband’s bonuses be deducted from his net bonus. However there was evidence that the former husband underpaid the wife money she was entitled to. The former wife also argued that the Court erred in declining to award her pre-judgment interest on the additional alimony award. The Trial Court did not elaborate in its Final Order as to why it declined to do so, but the fact that the Trial Court awarded her an amount she was owed indicated that she had a right to the amounts that she was underpaid each year.  As such the Trial Court erred in failing to grant pre-judgment interest on the former wife’s additional alimony award.

Again, marital settlement agreements need to be clear an unambiguous. In one case, the parties entered into a marital settlement agreement, wherein the former wife was awarded five (5) years’ worth of rehabilitative alimony. The agreement provided certain self-executing modifications of the term and amount of rehabilitative alimony if the former wife remarried within the five (5) year term. Those terms were clear and unequivocal. However the marital settlement agreement provided the following phrase: “The term of the rehabilitative alimony shall be non-modifiable; however, since the alimony is insufficient to meet the needs of the wife as established during the parties’ marriage, the amount of the alimony shall be modifiable.” The former husband filed a Petition for downward modification of his alimony, which was denied by the Trial Court.  The Trial Court found that the former husband had waived his right to seek modification of the amount of rehabilitative alimony. The Court agreed with the former wife that the quoted phrase limited the parties’ right to modify to only the former wife’s right to seek an increase.

Parties to a marriage may waive their statutory right to seek modification of alimony and provisions in a settlement agreement if the language in the agreement clearly and unambiguously expresses waiver or if the interpretation of the agreement as a whole can lead to no other conclusion but waiver. The quoted phrase suggested that the former wife may seek an increase in the amount of alimony, but the language does not clearly and plainly state that such would be the only circumstance under which modification may occur. Therefore, the terms are not a clear waiver by the former husband of his right to seek modification.