“Non-Modifiable Alimony” Means Non-Modifiable in New Mexico

It is often assume or perhaps hoped that alimony automatically terminates upon the marriage of the recipient of the support. This is not necessarily the case.

Spousal support may be ordered for a variety of purposes. It can be transitional, and/or rehabilitative. This means that it is by definition temporary in nature. It might be indefinite. It might also be in the form of a lump sum.

In the case of lump sum payments, whether in one payment or a schedule of payments, the alimony is fixed and cannot be changed. This includes the remarriage or even the death of the receiving spouse. In essence, it is vested property interest.

In the case of transitional or rehabilitative, the parties and/or the court can make the spousal support non-modifiable. In the case that the alimony is made non-modifiable either by agreement of the parties or judgment of the court, the amounts cannot be later modified.

In all but very rare and exceptional cases, this means that neither spouse can go back later for a modification. Neither the recipient spouse can ask for more nor can the paying spouse ask for less. It is inconsequential whether the payments of spousal support later become a financial strain. Likewise, the recipient cannot go back and ask for more due to economic necessity or hardship.

The resolution of non-modifiable support is final whether it comes by marital settlement agreement or order of the court. This means also that it is immaterial whether the recipient spouse gets remarried.

In case of agreement by the parties in the marital settlement agreement, the spousal support was a bargained for exchange. It is assumed that it was negotiated in the context of the remainder of the division or debt and assets. It is valued at the time of the divorce and it cannot later be changed, modified or renegotiated in the absence of an agreement between the parties.

Likewise, if the parties proceed to trial, and the court makes an order of non-modifiable alimony, this order would issue in light of the remaining issues of property, debt, income, and income earning potential of the parties. The court‘s order, right or wrong, is binding. “Non-modifiable” means non-modifiable in the absence of a successful appeal. This is one good reason for working out the differences between the parties in a marital settlement agreement.

Because these matters are except in rare situations irreversible, it is extremely important to work through these in advance. The issue of non-modifiable alimony can be very important and potentially burdensome on one or both parties. It should not be entered lightly.

On the other hand, there may be situations where such a non-modifiable alimony agreement makes sense in the context of the overall division or property and debt. To know if it does, you must first understand the overall picture of property and debt and how the issues might be resolved if left to the court.

This is best accomplished with the guidance of an experienced divorce and family law attorney.


Related Reading:
New Mexico Alimony: Til Death Do Us Part!
There are Many Options for the Payment of Alimony in New Mexico
Alimony and Spousal Support in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys