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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
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Experience:  19+ Years of Legal Practice in Family law matters.
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I was awarded permanant alimony in WV. We waived the rights

Customer Question

I was awarded permanant alimony in WV. We waived the rights to one anothers penions. I have not received a payment since he retired but his payments to me go through WV DHHR. Is his pension considered income and will he still be obligated to make the spousal support payments?
Submitted: 2 years ago.
Category: Family Law
Expert:  AlexiaEsq. replied 2 years ago.

AlexiaEsq. :

*Due to rules of your state bar or mine, nothing herein is intended as legal advice, only intended as general information to better help yourself.

AlexiaEsq. :

Does your decree indicate that alimony does not terminate at retirement or that is or is not modifiable based on change of circumstances?

Customer :

No, it states that I receive it until I get remarried, die, or live with someone for a period of 4 months or more.

AlexiaEsq. :

One moment please.

AlexiaEsq. :

From your facts, it sounds like the intention was for alimony to continue into retirement and not cease at, say, 65. While he didn't have to split his pension ASSET are part of distribution of marital assest, nor did you, by agreement, if his is greater, that could support the fact of continued alimony, because alimony is often very tied to the results of distribution of assets.

AlexiaEsq. :

Do you know if his alimony was paid by wage garnishment to the DHHR? Via his employment?

AlexiaEsq. :

(And yes, income is typically inclusive of ALL income, including pension income, particularly if it was not distributed as a marital asset.)

Customer :

Because of my age and health I am not able to work, his pension is much more than mine so it was decreed that he pay monthly support payments until one of the stated situations change. He is in arrears for 2 and 1/2 months as of today. DHHR states that his "employee or source of income" has 30 days to answer they request for income withholding. Yes garnishment was paid through DHHR

Customer :

I'm sorry, I meant "employer or source of income"

AlexiaEsq. :

OK, here is what seems to have happened. He is no longer collecting wages if he retired from the company.

AlexiaEsq. :

Thus, there is nothing for the employer to garnish - no wage to garnish. His pension is not a wage. However,

AlexiaEsq. :

that does NOT mean that his obligation to pay stops. His alimony obligation, on these facts, continues forever unless

AlexiaEsq. :

he can convince a court to stop it - due to change in circumstances were equity demands it.

AlexiaEsq. :

However, given his agreement for permanent alimony

Customer :

He receives his pension from the State of WV the same place he was receiving his income, does that not mean his pension from the state can be garnished as well?

AlexiaEsq. :

and his knowledge (likely) of when he'd retire and stop his wage income and when he'd start his pension income, none

AlexiaEsq. :

of this is presumably a unforeseen change of circumstances - it was part of the circumstances included in your

AlexiaEsq. :

alimony decision.

Customer :

I'm not sure I understand what you are saying, does his state pension, the same source of his income, have to garnish his alimony obligation for support?

AlexiaEsq. :

One momentplease

AlexiaEsq. :

The source is not necessarily the same, because garnishment orders typically describe the fund: i.e. garnishment of wages to employer... garnishment of pension is ordered on the pension administrator.

AlexiaEsq. :

But one moment please.

Customer :

according to DHHR, they believe that he is receiving income, pension or otherwise so his obligtin is still due from his source on monthly income. Do you agree with that theory

AlexiaEsq. :

His obligation does NOT stop.

AlexiaEsq. :

But, that does not mean his pension will be garnished. He may have to pay directly. If

AlexiaEsq. :

he does'nt, you file a motion to enforce and or for contempt. He can be jailed for violating.

AlexiaEsq. :

Don't confuse the obligation with the garnishment. For instance

AlexiaEsq. :

when a person has wage garnishment for a judgment, then loses his job or changes jobs, just because that

AlexiaEsq. :

garnishment order will not apply to the new employer, does not mean the ex is off the hook.

AlexiaEsq. :

He will be in contempt for not paying, since he is ordered to pay.

AlexiaEsq. :

Typically, a QDRO is the type of order used to force the pension administrator to pay a portion of the pension to the spouse.

Customer :

Let me get this straight, his retirement income from state pension shoud be garnished as before when he was working? Sorry I'm so confused but this has been devastaing to me. I was informed that the State retirement office can and should garnish his pension as his source of income is still the state.

AlexiaEsq. :

Pensions ARE confusing and they all differ in their rules, which is why we can't get the details here, precisely. But, if he fails to pay his ordered alimony, you can seek a QDRO (qualified domestic relations order) from the court and that directs the pension administrator to pay you a portion.

AlexiaEsq. :

It would be similar to garnishment, I suppose, but we never call it that.

AlexiaEsq. :

It is typically a way to enforce the distribution of the asset. Which you waived. However, the court could order it now, feasibly, if the ex refused to pay his alimony obligation and there is no reason to change his obligation.

AlexiaEsq. :

You see what I am saying?

Customer :

The 30 days for the pension office is up on the 6th of April, if they have not garnished his pension I will direct DHHR to file the QDRO order. This is so messed up!

AlexiaEsq. :

The DHHR does not file a QDRO. You need to get the court to re-open the divorce decree to ORDER that the pension be shared in this way, it will Order it, and then you take that order to a QDRO drafting expert (often an attorney, but most family law attorneys outsource that to specific QDRO specialists (they can be found on the 'net) because a QDRO is SO complicated that it must be done so carefully - else the pension administrator will reject it saying it doesn't meet the pension rules.

AlexiaEsq. :

This is a step by step process. You can wait til after the 30 days though, certainly, to see if some magic occurs with regard to the employer - but just don't be surprised if they say, he is no longer earning wages here - so we've no wages to garnish. You need a QDRO to get to his pension.

AlexiaEsq. :

I have a meeting in 5 minutes, but I will check back with you when I get back!

Customer :

ok

Expert:  AlexiaEsq. replied 2 years ago.
Hi, let me know if you have any other questions!

I hope this helps clarify for you.

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AlexiaEsq.
AlexiaEsq.
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19+ Years of Legal Practice in Family law matters.