Quail Valley, CA asked in Divorce and Family Law for California

Q: Is it possible for judge to change a non-modifiable alimony order? I am a 55 yo 100% disabled Vet. She is 47 and healthy

Married 16 years and divorced for almost 6 years. Except for active duty from 2002-2012, I have only worked contract/temp jobs. Beginning in 2014, I was forced to support her even though I was already a disabled Vet. In 2016, due to severe pain in my feet and back, I filed a motion for modification. She fought it and still refused to work. I paid $2600 for her to complete a vocational evaluation. She withheld information regarding her degree. Her attorney and mine agreed that the alimony would be non-modifiable until 2022. My attorney stated the judge would raise it if he saw how much I made. I tried to convince him that my contract might end (which it did) and I might not have a source of income. He said it wouldn't matter. I have missed the last 3 months and she is now asking for contempt. She does nothing but travel and buy new cars, but still won't work (ignored Gavron Warning). Can Marriage of Shimkus apply or is there another option? She plays while I struggle. I am unemployed.

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1 Lawyer Answer
Sandy Lynne Meade
Sandy Lynne Meade
  • San Diego, CA
  • Licensed in California

A: Generally speaking, if the correct wording is in the Judgment for non-modifiable support, it is non-modifiable. However, in your case, you have had an unanticipated and serious change of circumstances that would make you unable to pay the support ordered and she is in a far superior earning position. You may also be able to include the fraud related to the failure to disclose her education/degrees in the vocational evaluation that I assume was used

to calculate support and all of that combined with her failure to follow the Gavron warning, may be grounds for a modification. Where you stand now, you have to roll the dice and file for modification. Leave it up to the Judge to decide if (s)he will modify the support or perhaps issue a counter-support obligation from her to you to offset your support obligation. You may not win, but you won't know for sure until you file the motion and try. Frankly, I don't see a down side to at least asking even if the answer is "No", at least you tried. I suggest you make whatever payments you can afford in the meantime, and not just cut off support entirely to avoid civil or criminal penalties as much as possible for failure to pay your support. Impossibility is a possible defense but 100% disability in military does not mean you cannot hold ANY civilian job so go find a job that you can handle with your disabilities. Hope this helps.

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