Back in October, 2013, I blogged about losing a dear friend and client, Bill*, after his long battle with brain cancer, and unfortunately, also after a long battle with his former wife over his continued alimony obligation to her.

(photo courtesy of freedigitalphotos.net)

Over the past several months, I received many emails from people who had read the blog and were touched by Bill’s story.  They, or someone they loved, also struggled with health issues and were nonetheless continuing to pay alimony at a rate that they simply could not afford in light of their involuntarily reduced income.  They empathized with both Bill and his dear wife, whom I still keep in touch with to date.

Several days ago, however, I received an email from an individual who had read the blog; but this time, it was written from the perspective of the supported spouse.  I received permission to anonymously publish the email here:

Ms. Baer,

I came across your blog while researching this subject for my sister. She is on the opposite side of your friend, “Bill”, and it is a moral dilemma for sure. In my sister’s case, she was awarded lifetime alimony three years ago by the Delaware court after 25 years of marriage to her ex-husband. She is unemployed due to a variety of mental and physical problems but we are hopeful she will gain some type of part-time job soon. Her three sons are all over age 18 so child support is not an issue. Last September her ex, age 52, was diagnosed with brain cancer, stage 4 glioblastoma. He continued to pay my sister alimony as he was on short term disability from his employer, a large pharmaceutical company. About a month ago, her ex’s new wife (married less than three years), who has power of attorney,  texted my sister with the message that they would not be paying alimony as the employer had stopped paying the ex. She stated they were living on Social Security until long-term disability kicked in, which she understood would pay 60% of the ex’s former salary. And they could not now afford to pay my sister and also the ex’s health care. FYI, there are other considerable assets including the pay-off distribution from the marital home of which the ex received a very substantial sum. But there are changed circumstances of income obviously. The dilemma for us is what to do next and it is not an easy decision. Her ex-husband could possibly die soon which makes the case for alimony moot. As you present in your blog, to make the last days of someone who is dying more troublesome with concerns about alimony seems unconscionable. But on the other hand, if he continues to live for some time, the alimony obligation is there and the need to receive alimony is there too.

I am not writing to you for legal advice. I am pointing out another side to this very sad situation. In my opinion, my sister received very poor legal representation during her divorce so we want to avoid incurring further legal costs. We are trying to work amicably with the new wife, obtain an amount of alimony they (ex and wife) will agree to when/if the long-term disability kicks in along with Social Security, and submit a motion for reduction of alimony to the judge (assuming the ex is still living) without any representation of counsel.

Both of these situations point to the necessity of thinking about worse case scenarios when drafting stipulations involving divorce, alimony, life insurance, and property division.

Of course, because every case has its own unique set of facts – precisely why family court judges are granted such wide discretion in making these types of decisions – the case presented in the email is far different from the situation Bill dealt with, particularly in terms of his former wife’s ability to earn an income that well exceeded the income assigned to her at the time of the divorce, and in fact, well exceeded Bill’s reduced income.

However, the person who wrote this email is absolutely correct.  When one is diagnosed with a terminal illness, the fallout is never easy for anyone who depends on that person for love, guidance, monetary support or emotional support.  I truly feel for both the former spouse, the new spouse and, of course, the person at the center of all this, the person that may lose his life to cancer imminently.

It is for that reason that in situations such as the ones described above, I always try to take an objective view and to ask myself: what would these parties do if they were still married?  Would the spouse who typically earned the bulk of the money during the marriage continue to do so?  Or would the non-supporting spouse seek employment, contribute more to the family pot and weather the storm with his or her ill spouse?  Many times, particularly in Bill’s case, it would have been the latter.

Nonetheless, that type of common sense analysis typically gets lost in the semantics of Lepis v. Lepis – the seminal alimony modification case – when judges opt for strict adherence, demanding to engage in extensive discovery, hold hearings and proceed as if the supporting spouse simply opted to move to a less lucrative career, rather than involuntarily face a terminal illness.

Issues of family and support are never easy.  But it is interesting to see the real human emotions that exist on both sides of the coin.  I thank the author of the email for their input into this delicate issue.

*Name changed to protect client confidence.

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Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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