Is Anything Left of Integrated Bargain in Alabama?

The doctrine of integrated bargain for alimony in Alabama has always been a curious thing, a principle that, in a sense, seeks to have it both ways. Now the Alabama Court of Civil Appeals seems to have decided to torpedo it, sort of.

Ala. Code § 30-2-55 provides that alimony ceases on the recipient’s remarriage or living openly or cohabitation with a member of the opposite sex. One of these days we may have a nice conversation about whether there is a difference between “living openly” and “cohabitating,” but that’s not what this note is about. What this note is about is whether a divorcing couple can comply with that statute and still take advantage of the concept of an “integrated bargain” when it comes to alimony.

Alimony is normally subject to later modification by the court on a showing of a material change in circumstances, and no agreement of the parties can remove the court’s power to modify the judgment. Block v. Block, 201 So. 2d 51 (Ala. 1967). So far so good.

Now layer onto this clear principle the doctrine of “integrated bargain,” which says that when the parties establish the amount of alimony by taking into account the property settlement features of the agreement such that the entire provision for one spouse is in consideration of the entire provision of the other and the support and property terms are inseparable, the alimony payments they establish may not be modified later without the consent of both parties. The cases most often cited concerning an integrated bargain in Alabama are DuValle v. Duvalle, 348 So. 2d 1067 (Ala. Civ. App. 1977) and Gignilliat v. Gignilliat, 723 So. 2d 90 (Ala. Civ. App. 1998). DuValle contains a comprehensive examination of the doctrine and states the principle clearly.

So now we have two seemingly inconsistent principles: (a) that alimony is always modifiable, and (b) that, uh, well, sometimes alimony is not modifiable. Can they ever both be true?

The reason this note is about integrated bargain is because the Alabama Court of Civil Appeals has waded into the integrated bargaining swamp again with the case of Holmes v. Holmes, Case No. 2070623 (Ala. Civ. App. February 27, 2009). As I describe the facts of Holmes, I will leave out those that do not directly impact the integrated bargaining issue. The parties divorced using a settlement agreement. 15 months later the wife filed a petition for rule nisi (enforcement) seeking to have the husband held in contempt for failure to pay court-ordered child support, alimony, and other obligations. The husband counterclaimed that he was unable to pay and sought a reduction of his alimony.

The trial court denied the husband’s counterclaim and held the husband in contempt for failure to pay, finding that the alimony provision in the parties’ agreement constituted a non-modifiable integrated bargain. When the trial court denied the husband’s postjudgment motions, the husband appealed.

The appeals court quoted at length from the DuValle case as it worked to describe the difference between modifiable periodic alimony and a nonmodifiable integrated bargain:

Agreements by which both property rights and rights of support and maintenance are settled consist of two categories. In the ‘severable combination’, although both types of rights are fixed, the provisions as to each are severable and distinct so that the amount of alimony initially agreed upon by the parties may thereafter be modified by the trial court.

In the ‘integrated bargain’ category of agreement, the amount of alimony to be paid for support and maintenance has been established by the parties by taking into account the property settlement features of the agreement. In other words, ‘”integrated bargain” agreements [provide] for both support and division of property, but with the entire provision for one spouse being in consideration for the entire provision for the other, so that the support and property terms are inseparable.’ 61 A.L.R.3d 520, 529. Alimony payments thus established may not thereafter be modified by the court without the consent of both parties.

The rationale for the latter principle is clear. The parties have agreed that the support payments and the provisions relating to the division of property are reciprocal consideration. To modify the alimony provision might drastically alter the entire character of the property settlement agreement to the detriment of one of the parties. Hence, the trial court may not modify the alimony provision of the ‘integrated bargain’ without the consent of both parties. See Plumer v. Plumer, 48 Cal. 2d 820, 313 P.2d 549 (1957); Fox v. Fox, 42 Cal. 2d 49, 265 P.2d 881 (1954); Movius v. Movius, 163 Mont. 463, 517 P.2d 884 (1974).”

DuValle v. DuValle, 348 So. 2d at 1069.

The agreement the Holmes parties reached said the following about alimony:

A. The Husband shall pay to the Wife, as periodic alimony, the sum of One Thousand Six Hundred Ninety one Dollars ($ 1,691) per month. Said payments shall begin on the first (1st) day of October 1, 2006, and shall continue due and payable on the first (1st) day of each month thereafter in consecutive months until such time as the Wife shall die, remarry, or it otherwise terminates as provided by law.

B. The parties acknowledge that the agreement for the payment of periodic alimony by the Husband to the Wife is an integrated bargain; and, as such is fixed and non-modifiable, with the parties intending herein to finally settle all claims of rights of spousal maintenance and support pursuant to their divorce. The parties acknowledge and signify that it is their express intent and agreement that the provision herein contained for the payment of periodic alimony by the Husband to the Wife shall not hereafter be modifiable by either party, for whatever reason or circumstance. The agreement herein reached fully and finally establishes the obligation of the Husband to the Wife to provide towards her support and maintenance.

The husband argued in his appeal that the agreement between the parties was ambiguous as to whether it constituted an integrated bargain, because it contained both a statement indicating that the agreement was an integrated bargain and a statement that alimony would stop if the wife remarried. That was enough for the appeals court. “The express declaration that the provision is an integrated bargain is in direct conflict with the statement that the award is one for periodic alimony and subject to modification under certain circumstances. We conclude that the provision at issue is susceptible to more than one interpretation and, therefore, that it is ambiguous . . . . We reverse the February 1, 2008, judgment insofar as it determined that the provision of the parties’ settlement agreement pertaining to periodic alimony was unambiguous” Holmes, supra, at 17.

Note that the language in the Holmes parties’ agreement wasn’t really complete from the standpoint of an integrated bargain. It says nothing about the parties’ having taken property division into account in setting alimony. So the appeals court could have reversed on that basis alone, simply stating that the agreement was not clear that the parties had an “integrated” bargain. But the appeals court chose to ignore this and focused instead on the fact that the agreement called for the alimony to stop when the wife remarried.

So now we have found an agreement ambiguous simply because it complies with the Alabama code. Note that Ala. Code § 30-2-55 says nothing about the parties’ being able to agree otherwise. It’s mandatory, and the parties cannot escape or change it. Or can they?

Let’s look at the exact wording of Ala. Code § 30-2-55. Here’s the text: “Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.” (Portion omitted dealing with effective date). We Alabama lawyers have always inserted language about alimony stopping on the remarriage or cohabitation of the recipient based on the statute, but there’s no requirement that we do so. In fact, the statute seems to contemplate that we might not do so, because it specifically requires that any decree be modified so to provide.

So here’s what I’m willing to try the next time parties want to use an integrated bargain dealing with alimony. I’m going to start with what I have been using as my standard integrated bargaining language:

The parties have taken into account the property settlement features of their agreement in setting the amount of alimony to be paid for the support and maintenance of the Wife. This agreement is an unambiguous Integrated Bargain providing for both support and division of property, with the entire provision for one spouse being in consideration for the entire provision for the other, so that the support and property terms are inseparable as described in DuValle v. Duvalle, 348 So. 2d 1067 (Ala. Civ. App. 1977). The parties have agreed that the support payments and the provisions relating to the division of property are reciprocal consideration. To modify the alimony provision might drastically alter the entire character of the property settlement to the detriment of one of the parties.

And then I’m going to do two other things. I’m going to scower the agreement to remove any hint of language that might be used to argue the alimony should be changed. And then I’m going to do something else. I’m going to remove the language referencing Ala. Code § 30-2-55. That is, there will be no statement that alimony stops when the recipient remarries or cohabitates. Yes, I know the court is specifically required to modify it later to insert this provision, but that’s the only way I know to produce an umambiguous agreement.

I honestly don’t know whether this strategy would work. I only know no other strategy seems to have worked so far.

Because this post discusses something about my legal practice, I will end with this mandatory statement: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

3 comments

  1. Allan says:

    I was divorced in 2003 in Alabama after 35 years of marriage, (ex-wife filed unreconsilable differences ???). I had been working in Kuwait from 1995-2006. During that time she continuosly asked for a divorce. I was retired from the Army and was forced to pay 1/2 of my retirement to my exwife PLUS $750.each month. She has always held a Federal Government job before, during and after our marriage and divorce. I agreed to the divorce and had to pay for all the back debts she created and owed plus all the court costs in 2003.
    I had to sell our home which was awarded to me because of three mortgages on it which I paid. Over the 10 years of my absence this house had been totally trashed by wife. And I had to return from Kuwait to repair it for sale. All remaining contents were packed and shipped to Oklahoma to my mother’s home for storage.
    In 2004 the house sold and I gave her a check for 5000 to my exwife when I didnot have to give her any. I
    In 2006 I returned from Kuwait aftr I was terminated from my job and still cannot return to my job. I lost about 90K per year income since June 2006. Upon arriving to the US, planning on re-establishing my life here, I learned my exwife asked the children to choose between me or her.
    My daughter to this day does not speak to me even though I sent my daughter (28yrs old) , her and my exwife an addtional $1000. per month while I was working in Kuwait. I tried to explain to all of them I had lost my job and would not have the funds for all the extras. It did not matter it was either send the extra money or no relationship with my daughter.
    In addition, as I was unpacking items that had been placed in storage from our old home, I found a number of my ex-wives personal emails which I now see why the hurry to get a divorce. She had been meeting with men from 2000 while I was working over seas. Between her and one man making reference about her hating me coming home for a month and the man stating that there was a swimming pool in the back yard and accidents do happen.
    Now I am 65 on Social Security (1300 per mo), Ret Army (1400 per month) working a walmart for 7.70 and hr part time, 50K in debt and my ex-wife collects 1/2 of my retirement (1200.00) and 750.00 per month.alimony. She still holds that same Federal Job and makes about $4000 per month. Exwife Income And Alimony $5950 My income about $3000 per month
    I would like to get married and get on with my life but can not afford to as long as I am in debt. Do I have any chance of atleast getting the $750 per month dropped. And where would I go for help?
    Allan

  2. Lee Borden says:

    Sure, there’s a chance. In order to have a meaningful chance of a reduction, however, I think you’re going to need to talk with a lawyer who can study your case and then advise you.

  3. Chris Holmes says:

    After being remanded back, the trial court found in favor of Mr. Holmes, that it was NOT an integrated bargain, however did not reduce the alimony because there was no material changes in circumstance to justify the request.

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