Sorry. My question is: Can he file a motion to modify alimony based on a change of his financial circumstances?
Separation agreements are not filed with any one. You have a copy and he has a copy. Unless the agreement states that he can seek a modification of his alimony based on his financial circumstances he will not be able to do that. Child support yes, alimony no.
If he stops paying you what is in the agreement then take him to court for breach of contract. You will win. He will pay your attorney’s fees. It is that simple.
Thanks
When he files for divorce within the next couple months - is it possibly that he can attempt to change the PSS/Alimony?
Hope this isn’t redundant - but just want to make sure.
He is not bulking at the child support just the PSS/Alimony. He says he is going to file bankruptcy because he cannot afford both.
Bankruptcy will not get him out of child support. It may not get him out of alimony. Bankruptcy laws have changed. He will have to attend 6mo of credit counseling before he can actually file. He will have to get an attorney to file bankruptcy. They usually work on a cash basis only. He can file for bankruptcy and get creditors off his back, but not you. Bankruptcy talk is usually that. Talk.
He can attempt anything. If it is the agreement then he will not be successful.
Sadly there are many people out there that don’t pay child support; that don’t pay their alimony, regardless of the sanctions that are imposed on them.
When you say your agreement is filed, do you mean it is incorporated into a court order, or that it is a court order?
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Incorporated into a court order; i.e., mediation (13 hours) with CS, Alimony and ED completed and all other matters are settled.
Can he try and modify the alimony since all of this is completed; does filing for bankruptcy make a difference? He is able to file for divorce within the next couple of months.
Thank you
From: northcarolinabankruptcylaw.com/faq.html#7
Alimony, maintenance, and/or support are protected from discharge. Divorce decrees and separation agreements are covered by 11 U.S.C. Section 523(a)(15). This section states that these debts are not dischargeable unless:
(A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or
(B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor.
Alimony is a “non dischargable debt”.
No, he cannot modify what is in the agreement (order).
Here is a better link: northcarolinabankruptcylaw.c … harge.html
I am afraid I still do not understand the nature of your agreement. If parties participate in mediation they can sign a separation agreement which is a legally binding contract or they can sign a consent order which is an order signed by the judge and entered by the court. If they sign a Separation Agreement when they divorce than can incorporate the Separation Agreement into the divorce and change their contract into a court order. The difference is in the way these issues can be modified and enforced.
A separation agreement is enforced through an action for breach of contract. You would have to file a lawsuit against him if he stopped paying alimony and ask the court to enforce the contract as written. Unless the contract permitted alimony to be modified it would be unusual for the court to modify. His only remedy would be to prove to the court he is unable to comply with the contract. Given the facts you described it is unlikely he would be able to do that.
A consent order can be modified by the courts. In order to modify the amount he would have to prove to the court that something substantial had changed since the entry of the last order. It does not sound like that is the case here.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Seperation agreement is in place and filed. STBX says he cannot afford to pay alimony for the stated time; but will pay for as long as he can.
He says he file a motion with his attorney to stop and/or decrease the amount because he says he cannot afford?
His job is the same and his income is the same. The only added expenses appear to be traveling and his girlfriend.
thanks