In Fattore v. Fattore, the Appellate Division held that a waiver of alimony may be ignored by a court where there has been a substantial and permanent change in circumstances and where the original consideration for the waiver is unavailable because of an unforeseen contingency. This decision took place in the context of federal law which prohibits an ex-wife from receiving any portion of her former husband’s divisible military pension when he switches to a non-divisible veteran disability retirement benefit.

After 35 years of marriage, the Fattores divorced in 1997, when they were both 55 years of age. The consent dual final judgment of divorce included a mutual alimony waiver with unambiguous language, “now and in the future.” The parties agreed to a division of assets. The consent judgment provided that the wife was entitled to 50 percent of a pension the husband had earned for his service in the Army National Guard, and that it would be enforced by execution of a qualified domestic relations order or QDRO. After the divorce, the husband continued to serve in the Army, but became disabled in 2002. He collected social security benefits and both pension and disability benefits. He then opted for disability benefits, which were tax-free.