I want to waive maintenance, but the lawyer is resisting

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Q My husband and I would like to agree that neither of us will pay alimony in the future and neither of us will have the right to demand alimony from the court. We asked the mediator to draft the agreement this way and he did it. Now we're letting the lawyer language run its course, and I feel strongly that I can't agree to a future waiver of alimony if he “survives” because the “judges hate it when people do that.”

I don't really understand what matters about whether it “survives” – what exactly survives? I also don't understand why judges should hate it. Can you help me understand what the big deal is?

A When people reach an agreement in the context of a divorce, the terms of the agreement can either “survive” or be “incorporated” into the divorce decree. If the conditions remain, it means that these provisions retain their independent contractual meaning between the parties and cannot be changed in the future. When a provision is included in the divorce decree, it means that one of the parties can ask the court to change that part of the agreement in the future if they can show that circumstances have changed significantly since the time of the divorce.

Many people agree to waive past, present and future alimony payments as part of their divorce agreement. But just because the parties don't need the money now, or because there is no additional money now to pay the support a spouse needs, doesn't mean this situation will last forever. For example, there may be no need at this time because both parties are working and have sufficient income to support themselves. But maybe someone gets laid off in two years and has trouble finding a new job with similar income – alimony may be justified, but if your waiver stands, you can't ask again.

Some judges approve agreements that include a waiver of survivor support, while others do not. I suspect you are in a district where there are some judges who are known for rejecting surviving waivers. Your lawyer therefore advises you not to agree to this.

Instead, you can now establish language that dictates when alimony will end if it is ever ordered in the future.

Email questions to whickey@brickjones.com

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