Modifying Existing Separation Agreement

North Carolina Divorce Law Divorce and Separation Answers
1

My ex-wife and I entered into a separation agreement in 2007 in Durham NC. During that time I was distraught as I did not want the separation. Her attorney drafted the separation agreement and I signed and agreed to the terms without having it reviewed by another attorney. I could not afford the fees, and my wife said if I did not argue about the contents of the agreement we would have a chance at reconciling. We did not reconcile and the divorce became final.

I agreed to pay alimony for 6 years, half the duration of the marriage, until death of either of us or she remarries. I also pay child support at a range well above the NC child support guideline calculations and cover all insurance and medical expenses for our minor son.

My ex-wife and son have been living with her boyfriend for the past 8 months. I have no problem with her boyfriend being involved with my son, but I do not feel I should have to continue to pay alimony since they live in the same home and are viewed as a family by the entire community. My ex-wife states that because our separation agreement did not include cohabitation in the agreement there is nothing I can do about it. She says if I stop paying she will sue me for breech of the agreement.

Also, just as many across the country, I lost my job and my home last year. I depleted my cash savings, IRAs, and 401K, and incurred a great deal of credit card debt during this time. Fortunately I am now once again employed, but am trying to get back on my feet. Even during the time of my unemployment I never missed an alimony or child support payment. I was a couple weeks late during one or two months of that period, but never missed a monthly payment.

My ex-wife has masters in nursing, but never worked as a nurse, and never worked through the duration of our marriage. She did however, work prior to our marriage. She states now that she will not return the workplace for anything more than “part time” odd jobs, and was even advised by her attorney not to seek employment even though she has a master’s degree in nursing, because she does not want to risk losing her alimony or reducing her child support.

After paying alimony in the amount of $1550 per month, child support well above the guideline calculations, and my living expenses and debt each month I have nothing left to contribute to 401K and/or cash savings, and very little that I can set aside for emergencies such as car trouble, etc. I am literally living paycheck to paycheck and holding my breath that I will not incur any additional unexpected expenses. My ex-wife laughs and says there is nothing I can do about the situation because I signed the separation agreement.

I am the first to admit and take responsibility for the fact that I made a stupid mistake by signing the agreement without having it reviewed by an attorney. However, it seems this must happen often as emotions run high and clarity is sometimes thrown out the window during separation and divorce. I would’ve done anything to keep us together at the time she wanted a separation. I now feel she took advantage of this fact at the time of separation and continues to take advantage of my mistake in judgment today.

Do I have any recourse? Can I modify the original agreement? Can I have the alimony stopped since it is common knowledge that she is living with her boyfriend? Is it possible to have the child support reduced to the NC calculation guidelines and have her take on a proportionate share of our son’s medical expenses? Is it fair that she continues not to work even though she has a master’s degree in nursing simply so that she can have increased alimony and child support?

Any advice you can lend would be greatly appreciated. I am not looking to shirk my responsibilities as a father for child support for my son, and will pay willingly the amount of the NC guideline calculations. I simply want what is fair and reasonable for both parties. I do not want to continue to pay above and beyond what is necessary and reasonable for the next several years in alimony or child support simply because of my mistake in judgment. Thanks in advance for your help. I am crossing my fingers you can lend some hope to my situation.

2

With respect to alimony, if cohabitation was not listed as a terminating factor, you are still obligated to pay according to the terms of the agreement.

Further, alimony that is contained in a Separation Agreement is non-modifiable, so your change in circumstances does not relieve you of liability.

If your new salary is substantially less (15% or more) than the salary you earned when you signed the agreement, you may attempt to modify child support based on this change by filing a court action to have support determined.

3

Thank you Ms. Clarey. Your response regarding alimony was my fear. Is difficult to continue payments (especially with my ex-wife laughing and commenting about it each month), and certainly does not seem fair due to semantics in an agreement. However, lesson learned the hard way I suppose. I now know to seek counsel in all legal matters. Out of curiosity…what could happen if I just stop paying alimony and it goes before a judge? Any chance a judge could rule in my favor due to the cohabitation?

As for my new salary, fortunately it is in close range to the previous salary I earned when I signed the separation agreement. However, additional income generating assets that I had at the time of signing of the separation agreement such as investment accounts, etc. were completely depleted due to my job loss. This loss of assets absolutely accounts for more than a 15% loss in overall income. Also, there was no debt at the time of the agreement whereas now there is significant debt due to my job loss. I was unemployed for over 6 months. However, I have a feeling that will not be a determining factor.

I guess I’m now attempting to determine if even though my salary has been replaced, would the substantial loss of additional income generating assets, i.e. cash savings, investment accounts, home equity, etc. be considered a significant change of circumstance that is a reasonable cause for modification of child support. Again, I am currently paying over $400 per month above the amount of NC child support guideline calculations based on my salary and income now, and at the time I signed the separation agreement.

If it is a valid reason then I definitely would like to seek counsel and attempt modification. However, if it is truly a “long shot” then I do not want to risk going further in debt with legal fees… and further angering my ex-wife…who often lashes out at me by running up unnecessary medical expenses and co-pays for my son in order to further increase the amount of money I have to pay her each month. Her motto is, “I make the rules, you just shut-up and pay!”

It’s certainly my own fault I am in this predicament, but it seems there should be some way to “undo” the damage for people who make similar mistakes by acting on emotion, but then “wise up” and simply try to seek what is fair to both parties at a later date once emotion has passed and reality sets in.

Your thoughts on whether I stand a chance at a successful outcome on child support modification would be greatly appreciated. Thanks so much.

4

If you stop paying alimony she can sue you for breach of the contract, and will likely win as the judge must read the agreement as it is written, without cohabitation as a terminating factor.

The change in your debts and investments is not a factor that can be used to modify child support, unless the overall decrease in your monthly income is 15% or more. I would recommend you gather your financial information and sit down with a lawyer in your area to see his or her views on the amount of your decrease in income, and whether or not a judge in your area could be persuaded to re-evaluate support.

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Thank you for the information Ms. Clarey. This forum is a very valuable and helpful service for those of us seeking answers to complex legal questions surrounding divorce. I am very appreciative of your dedication to sharing your valuable time and your legal expertise with the many members and viewers of this forum. I wish I would’ve researched and discovered Rosen Law Firm prior to my divorce. Keep up the great service. Thanks again.

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You are most welcome! I wish you the best!

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Ms. Clarey - The posts below could have been written by my boyfriend with the exception of the alimony part. That said, I am helping him request a hearing for modification of child support (agreed to in separation agreement signed 8/2009) since he has been unemployed for a year, also has child support obligations that are above guidelines (even when he was working), has depleted all savings, etc. He can’t afford an attorney at this time. From my research, I believe he needs to file a “Motion and Notice of Hearing For Modification of Child Support Order” (Form AOC-CV-600) from Durham/District 14’s Family Court website, along with a Financial Affadavit (Form 6). Would you be able to confirm that this is correct?

Further, once I have the correct forms, I believe I send to his Case Coordinator for filing, sending a copy to ex and attorney. If that is correct, do I have to include a copy of his completed financial affidavit? And do I include a request for ex to complete same?

Thanks in advance for any help.

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Your boyfriend must fill in the forms as all domestic pleadings must be verified (sworn to ) and signed by a notary. The documents you list are those that need to be filed with the clerk or family court office. He then needs to serve the documents and form 6 on his ex and her attorney. They will be required to submit and affidavit as well.

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Thanks very much for the quick response. Couple more questions, if I may. In addition to the Motion to Modify Child Support, we will be filing a Civil Complaint for breach of the Agreement. I’m using cover sheet AOC-CV-100, Rev 10/01, is that correct? Also, does this also get filed thru the Case Coordinator or should this be filed with Civil court? Do we serve on ex AFTER a File No. has been assigned? And finally, I believe serving via certified mail is an allowable option, rather than contacting the Sheriff’s office, is that correct? Thank you again for all your help on this! Much appreciated.

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Yes, you need the coversheet and the action should be filed with the clerk of civil district court. Service occurs after the action is filed, and a number assigned for the breach action. For the modification you need to file under the existing file number.
Service by certified mail is acceptable.

11

Ok, thank you again!!

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You are welcome, I wish you all the best!

13

Good morning, Ms. Carey - Had a few follow up questions for you. First, my boyfriend did serve the Motion for Modification of Child Support Order along with his financial affidavit, as we had discussed, however his ex wife’s attorney filed a motion to dismiss based on lack of jurisdiction, and that motion was granted on the basis that their separation agreement was not part of the divorce filing, nor has child support been court ordered. Is there another avenue available for him to pursue a modification? As a side note, I’ve ordered a copy of the audio for the hearing, since I imagine it might be possible that the court ordered child support during that hearing last Friday…if that is true do we just refile the AOC-CV-600 and financial affidavit?

Also, he was found in contempt for some money he owes his ex from his 401k, money he no longer has. Since he’s been found in contempt, might he qualify to have an attorney appointed to represent him and if so, how does he go about requesting one?

Once again, thanks in advance for your help. Regards, Eileen

14

If the agreement was never incorporated he will need to file an original action for child custody and child support.
He will not be appointed an attorney for civil contempt, and will need to hire a civil attorney for representation.