I signed a sep agreement that states wife gets alimony and child support. I can no longer afford to pay alimony amt. I reduced amt and offered 3 fair alternatives to renegotiate sep agreement as stated per the terms. Ex is unwilling to renegotiate and is suing for breach of contract. If I pay child support and alimony, it doesn’t leave me enough to meet my basic needs of rent, food, or being able to provide for minor children when they are in my care. When we go to court for the breach, will I be able to state my reasons for the reduction with the hope that judge will see how unfair agreement is? Ex makes money under the table, has a college degree and is capable of making money to meet her needs. I am not unwilling to pay, just can’t pay current amt. What is the impossibility defense? What happens if I cannot pay, is jail time possible? Can court essentially leave me penniless so that she gets alimony/child support? Alimony is 1200 per month, child support 1100. She has house and all of contents, 1/2 401K, insurance. She threatened me with loss of my job/children if I did not sign agreement, however, I was told it is next to impossible to have it voided claiming duress? Cannot afford attorney.
Separation agreements are contracts and the amount of alimony is non-modifiable when outlined in a contract. You may use the defense of impossibility of performance to attempt to avoid liability in this case. You will have to show that given your current income it is impossible for you to perform under the terms of the agreement.
With respect to child support, I suggest a court action be filed to have child support calculated pursuant to the guidelines.
I have no issue with child support. However, if I pay all of the alimony plus child support, I am unable to meet my basic needs. If I moved to a smaller place, I would not be able to provide adequate space for minor children aged 4 and 16? I plan to have all income/expenses etc., fact that I had to use IRA money just to make basic ends meet, etc. to present at time case is heard. Is there any other info that would help with impossibility defense?
To have a successful defense you will have to prove that your income makes it impossible for you to pay the alimony. If there are concessions you can make (getting a smaller place) the defense will likely not be successful.
I recently married in Oct. 2009 to a man with two kids. We are currently going through the same situation. We did everything in our power without a lawyer to reduce the alimony and modify the child suport. I’m here to tell you, that we couldn’t afford a lawyer either but it is in your best interest to get one. Even if you have to borrow from family or friends.
We finally have a lawyer now and it has become extremely messy b/c we went so long without a lawyer trying to defend ourselves. I would recommend that you first call Child support services and file for an immediate modification to the child support to try and get that reduced.
Also, she has to sue you in order to take you to court for breach of contract for the alimony at which time you can use the impossible performance plea, however this is extremely hard without the help of a lawyer.
TRUST ME…I’ve been living in hell ever since. Good Luck with everything.