Want to waive alimony, but lawyer’s pushing back

QMy husband and I want to agree that neither of us will pay alimony and neither of us will have the right to ask the court for alimony in the future. We asked the mediator to write the agreement this way and he did. Now we are running the language by lawyers and mine is adamant that I cannot agree to a future waiver of alimony if it “survives” because the “judges hate when people do that.”

I don’t really understand what is important about whether it “survives” — survives what exactly? I also don’t understand why judges would hate it. Can you help me understand what the big deal is?

AWhen people reach an agreement in connection with a divorce, the terms of the agreement can either “survive” or be “merged” into the judgment of divorce. If the terms survive, that means those provisions retain independent contractual significance between the parties and cannot be changed in the future. If a provision is merged into the judgment of divorce, it means that one of the parties can ask the court to modify that part of the agreement in the future if they can prove there has been a material change in circumstances since the time of divorce.

Many people agree to waive past, present and future alimony as part of the divorce settlement. But just because the parties do not need the money now, or because there is no extra money now to pay alimony which one spouse needs, does not mean that situation will exist forever. For example, maybe there is no need now because both parties are working and earning sufficient income to support themselves. But, two years from now, maybe one gets laid off and is having trouble finding a new job with similar income — alimony might be warranted, but if your waiver survives you cannot go back and ask.

Some judges approve agreements containing surviving alimony waivers, others do not. I suspect you are in a county where there are a few judges known for rejecting surviving waivers so your lawyer is advising you should not agree to it.

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