Spousal Support, etc


#1

I obtained a divorce in 2005 in NC. Separation agreement states non-modifiable. I pay spousal support monthly; however, my situation has changed. I make less money and can’t afford the high monthly payments. I would like to make a lump sum payment out of my retirement account for the balance owed so I don’t have to worry about making the monthly payments until 2/2020 when my last payment is to be made. It was also ordered that I have a life insurance policy for $500,000 until I no longer have the obligation to pay support.

My ex has agreed to the lump sum payment however she either wants me to continue with the insurance policy or give her an extra $50,000. I am getting remarried shortly so naturally I want the life insurance policy I now have at the job I just started to go my fiancé if I died. If I pay off my obligation for spousal support I will take a hit on taxes which I’m OK with get it done and over with. To get a $500,000 life insurance policy it would cost me over $1,000 per month - which I can’t afford. Plus I don’t believe she deserves a life insurance policy if I have paid off my obligation. I explained to her the life insurance policy was to make sure she gets her spousal support if I died but not to go on forever. Between the ED and SS she has received almost a million dollars but still wants more.

Questions:

I don’t live in NC since I had to relocate for my new job. She doesn’t live in North Carolina. Since it’s a separation agreement that was not tied to the divorce, it is considered a contract; therefore, the lawsuit would have to be for breach of contract. If she does this for nonpayment and no life insurance policy, does she have the file in NC? Or can she file in her state?

Can I file for modification - only changing to one lump sum so she gets her money and I don’t need to have a life insurance policy with her as beneficiary? If so, do I hire a NC Law Firm such as yours or hire one in the state which I live?

Also, there is a new non-molestation clause in the separation agreement (she can’t interfere in my life). She has tried to get my fiancé to break up with me and even had her sister get involved. And tried to get my adult son to say something to my fiancé on her behalf since they have a good relationship. This was while she was paying the spousal support for me. Does that constitute as a breach of the molestation clause?

Thank you for your help.


#2
  1. If your ex-wife were to initiate a breach of contract action against you, she would have to file the action in the county and state where she lives (or where you live). North Carolina would not have personal jurisdiction over either of you since you both live out of state now, and likely have for some time.

  2. You cannot file an action in court to have a separation agreement modified. Like you said, a separation agreement is a contract. The only way to modify a separation agreement is to agree on a written amendment to the current agreement for the terms that both parties agree to be modified. Oftentimes separation agreements include a provision about modification and how to do it. However, you state your separation agreement is non-modifiable. If there is a provision in your separation agreement that clearly states no portions are modifiable or the alimony and life insurance provisions are not modifiable, then you will not be able to modify it. If you re-read that provision and see that it may indeed be modifiable, then you would consult an attorney where you live to help you create a new agreement.

  3. The actions you describe could be considered a breach of the non-molestation clause, depending on the exact language of the clause. However, in a breach of contract suit, you must have damages, monetary or non-monetary. The fact that you are your fiancé are still together and presumably still planning on marrying, you may not have sufficient damages.


#3

Thank you for the information, Anna. It’s a great service you provide.

I read through the settlement agreement again carefully … I have a few more questions.

I pay Alimony (not Spousal Support).
What is the difference?


To be clear…if she agrees to a lump sum - once I pay her, my interpretation is that I have fulfilled my obligation so I don’t need to still carry a life insurance with her as beneficiary. Is that right???

This is exactly what it says:
16. Life Insurance.
Husband shall purchase a life insurance policy to be owned by husband, insuring his life, has a death benefit of $500,000, which wife will be named the beneficiary. Husband shall maintain and pay for any premiums on this policy until named wife is the death beneficiary of $500,000 for so long as he has an obligation to provide spousal support. Husband shall provide to wife to annual proof of such coverage. Has been shown not in anyway alter the ownership or beneficiary enjoyment of such insurance for the death benefit amount specified herein. Husband waives any right to change the beneficiary for this insurance for the death benefit amount specified herein until he no longer has an obligation to maintain this insurance as specified herein. Has been will not file against the policy, sign the policy is collateral, or otherwise exercise ownership rights of the policy of the death benefit amount specified herein. These restrictions on policies also terminate when husband no longer has an obligation to maintain his insurance. In the event of the death of the husband diesband wife is not been named the death beneficiary of at least $500,000, wife shall be entitled to maintain a lawsuit against the state for that amount…


  1. Specific Performance.
    Either party has the right to compel the performance of the provisions of this agreement by suing for specific performance in the courts where the jurisdiction of the parties and subject matter exist. Both parties acknowledge that neither party has a plain, speedy, or adequate legal remedy to compel compliance with the provisions of this agreement.

Question: What does this mean - especially “adequate legal remedy”.


  1. Integration. The provisions for alimony in this agreement are merged and integrated with the property settlement of the parties contained herein. The provisions regarding Spousal Support are dependent or affected by the terms of the property division and distribution sit out herein.

Question: What does this mean?
Especially …
“The provisions for alimony in this agreement are merged and integrated with the property settlement of the parties contained herein.”


  1. Modification to Agreement.
    No modification or waiver of any provisions hereof shall be binding unless in writing and executed with the formality then required for the validity of contracts between husbands and wives. Any failure by either party to specifically perform or enforce performance exactly according to the letter of this agreement shall not constitute an alteration of the same by way of enlargement, reduction, estoppel or otherwise, unless confirmed in writing by the parties and duly executed by both parties, except as may be otherwise provided herein. It is understood that the parties may, by mutual agreement, make temporary modifications from time to time as conditions require, but thiis agreement shall nonetheless be binding upon the parties as written, except in the event of a material breach. Should temporary possession of any of the property distributed to one party herein be awarded by a court of law to the other party, the terms of this agreement shall nonetheless remain in full force and be binding upon the parties.

Question: Is the above what you mean by non-modifiable?


  1. Amendment. This agreement can be amended only by further written agreement in accordance with North Carolina General statutes 52–10.1.

Question: What does this mean?


LASTLY, Could I use “Impossible Performance” plea?


My apologies for the length of the post.

Thank you, again, for your help.


#4
  1. Alimony and spousal support are the same thing. Generally alimony is spousal support paid after a divorce decree.

  2. If your agreement is modifiable, make sure the terms of the modification are clearly laid out. If your ex-wife agrees to a lump sum for the remainder of the alimony that is owed to her, then also clearly state in the modification that you will no longer be required to provide the life insurance policy. You may even want to specify a certain date that you can end the life insurance coverage.

  3. The “adequate legal remedy” as in that context is stating that sometimes there is no clear-cut or best remedy available to compel performance under your separation agreement. Specific performance is requiring a party to perform under a contract exactly as contemplated in the contract. Sometimes Courts have a negative view towards specific performance as a remedy and therefore, there may not be a “best” remedy for performance by the other party in a contract.

  4. Without seeing the entire agreement, this Integration clause is probably trying to state the separation agreement is complete and final agreement between the parties as it relates to the alimony and property division provisions.

  5. Your modification clause does indeed allow a modification. It is saying that in order to be binding, any modification must be made in writing and executed the same as was the separation agreement (most likely you and your ex-wife both signed it and each signature was notarized).

  6. NCGS 52-10.1 states that separation agreements between husbands and wives must be in writing with each of their signatures acknowledged by a certifying officer (i.e. a notary public). So, you can modify your separation agreement as long as you and your ex-wife sign the modification document and each of your signatures are notarized.

  7. Yes, you can preface your request to your ex-wife to modify the separation agreement by stating that it will likely be impossible for you to continue to perform under the agreement considering your current circumstances. Keep in mind that she has no obligation to renegotiate any terms of the agreement with you, and there are no legal repercussions for her not doing so. However, such an argument may entice her to renegotiate with you.


#5

Thank you for your help. I’ve hired an attorney in my state to handle the payoff.