As part of a separation agreement, a spouse in Maryland often agrees to pay non-modifiable alimony for several years. But what happens if the payor spouse becomes ill and/or unemployed and can no longer afford the alimony obligation? While the payor spouse may not petition the court to modify the alimony amount or duration, the payor spouse may move to terminate his or her alimony obligation to avoid an inequitable result.
Non-modifiable alimony is subject to termination pursuant to Family Law Code § 11-108(3) when it is “necessary to avoid a harsh and inequitable result”. This very issue was addressed in Moore v. Jacobsen 373 Md. 185 (2003) in which the parties’ separation agreement, which had been incorporated but not merged into the judgment of divorce, provided that alimony was non-modifiable:
The parties expressly covenant and agree that pursuant to Section 8-101 through Section 8-103 of the Family Law Article Annotated Code of Maryland, that no court shall have the power to modify this agreement with respect to alimony, support or maintenance of either spouse except as provided herein.
Id. at 187.
In September 2000, the wife remarried and the husband stopped paying alimony. When the wife sued for arrearages, the circuit court and the Court of Special Appeals held that, under the terms of the parties’ separation agreement, the wife’s remarriage did not terminate alimony. Moore v. Moore 144 Md.App. 288 (2002).
In the Court of Appeals, the husband argued (1) that Family Law § 11-108(2) operated automatically because the agreement was silent concerning remarriage, and (2) the non-modifiability provision was irrelevant, because termination is not modification. The wife countered that the non-modifiability provision satisfied the “agreed otherwise” requirement of Family Law § 11-108 and, therefore, rendered the statute inapplicable. Moore v. Jacobsen 373 Md. 185, 188-89 (2003).
1. THE PARTIES DID NOT WAIVE THAT ALIMONY
WOULD TERMINATE UPON REMARRIAGE
The Court of Appeals agreed with the husband that his alimony obligation was subject to termination under Family Law § 11-108:
The agreement must contain express and clear language evidencing the parties’ intent that alimony will continue after remarriage of the recipient spouse; otherwise, pursuant to the language of the statute, remarriage terminates the obligation.
Id. at 189. The Court emphasized the need for “express and clear” contractual language, stating:
The public policy set forth in § 11-108 clearly states that alimony does not survive the remarriage of the recipient. To create an exception to that policy, an agreement must be equally clear.
Id. at 190. And further:
If the parties had intended that alimony would continue after remarriage, they should have, and could have, included an express requirement in the agreement.
Id. at 190-191.
2. A PROVISION THAT ALIMONY IS NON- MODIFIABLE DOES NOT APPLY TO THE
TERMINATION OF ALIMONY
The Court of Appeals distinguished modification from termination of alimony. It held that the non-modifiability provisions of an agreement do not apply to the termination of alimony:
It is obvious that the parties included the nonmodification provision to fall within § 8-103 and to preclude judicial modification. Termination is not synonymous with modification. Black’s Law Dictionary 1004, 1471 (6th ed. 1990) (defining modify as “[t]o alter; to change in incidental or subordinate features” and termination as “[t]o put an end to; to make to cease; to end”). _Termination is not modification and therefore is not prohibited by the nonmodifiability clause in the separation agreement_.
Id. at 191 (emphasis added).