Breach of Separation Agreement


#1

I have a few questions. My boyfriend who has been divorced for several years is being taken to court by his ex-wife. She is sueing him for breach of their separation agreement. In the agreement, they mutually agreed that he would pay a certain amount each month for child support, as well as some debt that had both of their names associated. Unfortunately, a series of events beyond his control (losing his income due to a business failing, needing to file bankruptcy, and then losing his other job) made him unable to pay child support for a time as well as unable to pay on the debts agreed upon in their agreement. Since he has gotten a new job, he has resumed paying child support, etc.

He has offered several times to try and work this out outside of court, and that he will pay her what is owed, but needs time to do so as he does not have a lump sum of money to give her. She proceeded to contact a lawyer and proceeded to file papers to sue him for what he owes in addition to her legal fees incurred by using the attorney. Now she is also making mention of re-figuring the child support amount.

Should he try and get an attorney (even though he does not have the funds available)? If he cannot afford an attorney, is there anything he can do himself to protect himself? Will a Judge take into consideration his inability to pay during the time when he had no income coming in??? And, what would be the extent of the judgement that could be filed against him (could his property be seized, banks accounts seized, lien filed against his house, etc)?

He is very worried that due to the fact that she has the resources to hire an attorney that he will not be treated fairly.


#2

Contractual obligations do not generally take ability to pay into consideration. That said, if it is an issue related to child support, and there is a change in circumstance, he may be better off filing for the court to set child support. You can use the calculator here to find out whether child support would be less under the guidelines, or his contract:

http://www.rosen.com/childcalculator

As to whether he’d be better off pro se or hiring an attorney: This is a personal decision he will have to make. If he is comfortable representing himself then it may be best for him to save the money to pay his ex, land proceed alone. If he isn’t comfortable working pro se, then he should hire someone. All that said, it isn’t uncommon for people to complicate their situation when they try to represent themselves.


#3

Since their child support was agreed to in the separation agreement, could he file to have it refigured through Child Support Enforcement? Or would he have to have their entire separation agreement re-done?

She is already mentioning getting the child support refigured… he is suspect that she has alternative motives with this (i.e. trying to receive more child support, or trying to gain more custody;currently he has their child 5 nights to her 9, they rotate weekend and a few weekdays)