Separation Agreement is a Mess


#1

This is kind of long and complicated but here it is in short;

On 12-21-2000 I signed a “ridiculous” separation agreement
-in part it awarded my ex $400 a month Child supt. & $400 a month Alimony as well as being financially responsible for quite a few other things. Shortly after signing we both agreed that I would never be able to make these kinds of payments.

On 10-25-01 we signed a revised S.A. that was the same as the first but reduced each payment to $150 monthly. (she got a check for $300 each month). This second agreement was notarized just like the first one but the notary conveniently forgot to sign.

In January of 02 she filed a Breach of Contract saying I was not paying the entire amount we had agreed on. Even though she had been getting the $300 check monthly.

On 2-11-02 we went to court for the Breach and our divorce. Same day. I asked for a continuance on the breach suit as I had not yet retained counsel. When I asked for the continuance, The judge sent me out in the hallway with my ex’s Atty who had me sign a “Memorandum of Judgment Order” that stated the case would be continued until March and I would pay my ex 92.50 a week starting 2-15-02 and continue every other week there after. How I could be forced to meet with my ex’s lawyer while I was asking for time to retain my own is beyond me and seems unethical.
The case was continued. My divorce was granted. And I began paying the $400 a month. I have never paid anything more.

On 3-03-03 we went back to court for the breach suit that had been held open for over a year. This time she was represented by the Child Support Agency. She was looking for arrears, disputing that $300 was our agreed total. She still wanted $400. The judge ruled on the courts most recent order (the 92.50 a week memorandum from 2-11-02) and had me pay $400 a month C.S.
No problem. But in the ruling judge wrote this;

 -Court found that parties disagree about whether defendants obligation was decreased by the 2nd  S.A. which was tendered to the court. And  about “the classification of the obligation as C.S and/or alimony. As such the court determines that the issue of the arrears owed and their nature as support or alimony should be resolved by the parents outside of court.”

Fine. $400 payments went through the CS offices. And that’s all I paid. That’s all she asked for. In 2004 my son moved in with me. We stopped the payments and ex asked for no more money pertaining to CS OR alimony.

2006 son moves back with ex. I start payments again. blah, blah, blah.

Son turns 18 a year from now. Ex says she will expect the $400 to continue (as Alimony). $400 is what I’ve been paying (for 9 years) Child support should cease next year. Am I obligated to continue $400 payments to ex? Even though this or these Separation Agreements have been basically flung out the window by both parties.

Ex is the proud mother of a brand new baby girl. New man living with her. She will not remarry because the 2nd SA stipulates alimony until remarriage. The first SA has no stipulations ( just states an amount).

What kind of options do I have with this mess???


#2

With respect to the second separation agreement, unless you can prove that the same was actually notarized, it is invalid. You should locate the notary and subpoena that person to court to testify that the second agreement was actually signed in his or her presence.
As for meeting with your ex’s lawyer, the meeting is considered a negotiation between the parties, even though you were not represented at the time, it is presumed you signed the memorandum knowingly and consensually.
I am unsure why a judge refused to classify the payments you were making as child support or alimony. Since the payments are delineated in a Separation Agreement, you will not be in contempt of court if you discontinue the payments when your son turns 18 (assuming he has completed high school by that time). Your ex will be left with a breach of contract action, at which point a court will be forced to determine the nature of the payments and whether they should continue.
North Carolina law states that alimony ends upon cohabitation, and though your agreement does not specify this as a terminating factor, it is a strong argument in your favor that you are not in breach if she does in fact move forward with a second suit for breach.


#3

Thank you for your response. One other question though. How do you see a strong argument in my favor regarding not being in breach of the contract. As you said, the agreement does not specify cohabitation as a terminating factor. So where does my strong argument come in. The agreement is not incorporated so I was under the impression that a judge con not modify.


#4

The agreement is ambiguous as to whether the payments were child support or alimony. Its doubtful any judge would have ordered you to pay $400.00 a month in alimony, and no child support. The agreement is also ambiguous as to the terminating factors, so the law should control. (ie; alimony ends due to your ex’s cohabitation.)