Changed Financial Circumstances

North Carolina Divorce Law Divorce and Separation Answers
1

The answer to your question depends upon the content of the Separation Agreement that you signed. A Separation Agreement is a legally binding contract. If, under the Separation Agreement, you are obligated to continue to pay the private school tuition without regard to your income or ability to pay, and you fail to pay, your former spouse may successfully sue you for breach of contract. She may obtain a judgment against you for monetary damages, interest and perhaps even her attorney’s fees for bringing the lawsuit.

Another angle may be to file a lawsuit to modify your child support payments based upon your reduced income, taking into account the amount of the tuition and health insurance premiums you are paying. It may be helpful to calculate what the appropriate amount of child support payments would be based upon your current income using the NC Child Support calculator available at www.rosen.com.

Robin F. Verhoeven
Attorney at Law
Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCdivorce.com
(919)787-6668

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 but a full discussion with an attorney should be undertaken before taking any action.

2

I’m a non-custodial father and signed a separation agreement in 1996 that was very generous towards my ex-wife. At the time, after 14 years of marriage and 2 children, I was emotionally devastated and had no motivation, interest or energy to modify the separation agreement that her attorney had drawn up.

One of the statements in the agreement was to keep the children in private high-school. They currently attend one of the most expensive private schools in the SE.

I did have 2 sources of income, a regular job and investment in another company. Recently my financial situation has changed significantly because the company has gone insolvent. Overnight my income reduced by 50% and will permanently stay at this level.

Clearly I can not afford the private school. My ex-wife is unwilling to recognize my current situation and will not negotiate to share the costs.

I am currently going into debt due to this situation. Is my only course of action to go to court to attempt to revise the agreement ? If so, is the judge likely to look kindly on my predicament and view the private school as a "luxury’ ie: over and above the child support and medical insurance I currently (and will continue) to pay?