Going back on agreement


#1

I forgot to mention that he wants to go and file for divorce now, can he do so with the following situation: He left Sept. 1 2005 for a six month deployment for work and to he said he needed this time apart to see if the marriage would work. On March 30 2006 when he got back we decided to separate and came up with the separation agreement. He says he was informed by his lawyer that he is allowed to use the date of Sept. 1 as the start of our separation even though he was gone due to work purposes. He says he is going to go ahead and file and that my lawyer told me wrong as far as when we are able to file. Will he be able to use the date of September 1 as the start of our separation?


#2

The good news is that a separation is just an agreement between the two of you at that time. As long as you don’t break that agreement there is nothing he can do. BUT, the agreement is not yet a part of your divorce decree, which means he can ask for something totally different in the courthouse. The separation agreement does not have to be incorporated into the divorce decree, so he can definitely go back on the extra child support and giving you the house (unless he has signed it over). Now, if he breaks the agreement before you go to court for divorce, then you can sue him for breach of contract.

The separation date would be the last day you two spent the night in the same house as husband and wife.


#3

If you are still talking things like this over with your attorney then it sounds as though you are not finished negotiating ED yet. If the original agreement you came up with was signed by both of you then he can not go back and change it without breach of contract, but also, that means that you can not go back and get his retirement if it was not in the original agreement.
If the agreement was never signed and is still in negotiations then either of you have a right to disagree with any portion of it and change anything. If he agreed to give you a little over $200 more than he would be required then he can change that to where he only pays what is required. He can pay half the amount on the bills that are jointly owned and you would be required to pay the other half. He can ask for 1/2 the equity in the marital home and if you couldn’t afford that amount, may be forced to sell to pay that to him.
This is strictly my opinion, but if he’s given you the home, willing to pay all the jointly owed debt, and willing to sign an agreement for $200 more in child support all for the security of knowing that his retirement savings is safe, then I suggest you take that agreement. Yes, you’re getting less money right now, but in the long run, what you are gaining by getting out of paying 1/2 the marital debt and what you will get extra in child support until the children are grown will possibly be more than what you would get with 30% of his retirement. Just my opinion though…


#4

Thanks stepmother, I was asking because we came up with the agreement together before consulting attorneys, which I was happy with. Then after meeting with an attorney to discuss everythng and get representation just in case, he had me fill out a separation agreement document that they use and that is on there. I was just wondering if this agreement we have will he upheld for now. I never said I wanted the retirement pay, but when he found out that my lawyer told me about it he went crazy threatening to go back on the separation agreement we came up with. Just wanted to make sure he was bound to follow what we have come up with. Another question. He has informed me that his lawyer told him he can file for divorce now even though we did not separate until March, 2006. Here’s the scenario he was deployed on Sept.1 2005 for six months for the military, when he came back in March that is when he approached me about getting a legal separation. We drafted the sep. agreement on March 30, 2006. My lawyer told me that a year from that date was when we were able to file. His lawyer told him Sept. 1, 2005 since he was technically not living here even though he was gone because of his deployment. Does anyone know when we could file?


#5

If you did not resume living as husband and wife when he returned from his deployment, then you can use the Sept. date. If you did resume living as husband and wife when he returned home then you would use the March date. The date of separation should have been stated in the separation agreement.
His lawyer is probably telling him he can use the Sept. date because he stated that the 6 months deployment would be a “trial” separation. I think this boils down to specifics about whether you and he spent any lengths of time together overnight in the same house after his return.
It sounds as though you and he need to discuss this again. Let him know that since you signed the agreement that you and he came up with that you are not planning to try to get his retirement. Let him know this because it sounds as though you both have jumped to wrong conclusions since lawyer became involved. You need to let your attorney know that you intend to use the agreement that you and your STBX came up with and signed. Just because a lawyer didn’t write it up doesn’t mean that it isn’t a legal contract. If you both signed, then stick to it and let him know that is what you intend to do. If you break this contract then he has the right to break his part of it also.


#6

Thanks that helps, I was wondering why the lawyer I spoke to would have me fill out another separation agreement. As far as the date, when he came back we did not share a bed again, but he did stay here. In the agreement be stated that as of March 30, we were going to separate. I don’t know, it just seems like this should be a lot easier. I am just ready for it all to end. I am content with what I am getting because I get to keep my house and everything in it. Ome more question though. When I do the quitclaim deed and if I refinance, (I’m not sure if it will be possible considering my STBX husband ruined by credit)and I get the equity out of the home after we are divorced will he still have a right to that money. I ask because my sister-in-law mentioned it and it made me wonder.


#7

What about all the emails/attempts at cheating? And trying to get his re-enlistment bonus. Whatever happened with all that?


#8
quote:
[i]Originally posted by lookingforanswers[/i] [br]Thanks that helps, I was wondering why the lawyer I spoke to would have me fill out another separation agreement. As far as the date, when he came back we did not share a bed again, but he did stay here. In the agreement be stated that as of March 30, we were going to separate. I don't know, it just seems like this should be a lot easier. I am just ready for it all to end. I am content with what I am getting because I get to keep my house and everything in it. Ome more question though. When I do the quitclaim deed and if I refinance, (I'm not sure if it will be possible considering my STBX husband ruined by credit)and I get the equity out of the home after we are divorced will he still have a right to that money. I ask because my sister-in-law mentioned it and it made me wonder.

If the agreement states March 30th, then the date of separation is March 30th and after that date one of you should no longer be living in the marital home. You both need to let your attorneys know that you are using the original agreement that has this date and that you are both happy with this agreement.
If he has given you the house, in the agreement, then he has no claim to the equity. The only way that he would be entitled to the equity is if there is something in the agreement stating that he still has a claim on the equity until it is refinanced.
This is only as difficult as you two make it. If you two made an agreement, discuss it again and make sure that you two still agree to it all and tell the attorneys that this agreement stands. If you or he decide that you want more stuff, or less debts and want to renegotiate then all the assets and debts are back on the table and could be divided differently. Your lawyer works for you and in doing so occasionally, they will make suggestions so that you will come out better on the separation. It’s usually in your best interest but not always the best idea, especially if the separation is amicable and you already have an agreement in place that you are both happy with.
My suggestion, talk with your STBX, discuss the original agreement again, and if you both still agree to it all, then let the attorney’s know that it stands. If there are other issues that need to be detailed in the agreement such as visitations for the child/children then you can add to it without changing the basics that you have already agreed to. It sounds to me as though you and your STBX have a reasonably amicable relationship and you want to do whatever you can to keep things that way. Remember, if you have a child or children together that X is going to be involved in the rest your life in some aspect.


#9

I just answered this and said that if you signed an agreement then both of you should not be able to change anything. Otherwise, if you only verbally agreed, you both can change all agreements. Thank you.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
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Charlotte, North Carolina 28262
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1829 East Franklin Street, Bldg 600
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ROSEN.COM

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.


#10

My husband and I came up with a separation agreement on our own when we separated which took care of all the marital property and custody and child support. After talking to my lawyer we were going over other avenues, my STBX and I never covered especially since he is military. He has agreed to give me a little over 200 more in child support than what he would be required to give me. He has agreed to take care of any bills that are a joint account and pay them. He has given me the house. I was informed that I could stake claim in my husband’s retirement if I wanted. When my STBX found out he went crazy. He said that if I try to get any of his retirement then I need to sell the house and he is no longer going to give me what he gives me in child support and he is no longer going to pay those bills. I would like to know can he threaten to try to make me sell the house if I decide to accept the 30% of his retirement pay that I would legally be entitled to and pretty much go back on everything we agreed to in the separation agreement? I do not know what I am going to do about the retirement pay, it was just brought to my attention. Also could the child support he has agreed to pay me be reduced if his salary hasn’t been reduced just because of the retirement?