Where do we go from here?


#1

My fiance’ and his ex-wife signed the seperation agreement and used the same agreement for the divorce. However, the alimony and child support was never filed with the courts but stated in the agreement. I guess a gentlemans agreement.

In good faith my fiance’ has paid his ex-wife to the best of his ability which was for a long time over 100% of his income. That’s right, he had to borrow from family, friends and live in poverty to maintain the agreement to keep from supposedly going to jail. Clearly, when the agreement was set up, the lawyer and his ex-wife took him for granted and based everything in the agreement on projected income (i.e. commissions that were never earned). Since then, he had not been able to obtain a job that makes even close to what they based the agreement on.

Clearly, there need to be modifications made. However, since it was never registered with the court, what does this mean? I know the Divorce is real. That was filed with the court but the alimony and child support were never court ordered.

Where do we go from here? His ex-wife wants to have it filed now. I’m scared she will file it, without us doing modifications.

Thank you.

Uber concerned


#2

how long has it been since the separation agreement has been signed? Usually if separation agreement is not incorporated in the divorce order the only thing if you don’t follow it is only a breach of contract since it is not an order.


#3

The seperation agreement was signed in August 2004. The Divorce agreement (seperation agreement incorporated in the divorce agreement) was signed in August 2006.

What happens if there is a breach of contract on both sides?

Thank you. :?


#4

Was the amounts of child support/alimony mentioned in the agreement that was made a court order? I agree some kind of modification should be done since was based on potential income. He should get credit for what he has paid. You can get a estimate of child support and alimony using the calculator on this site to give you some idea of what should be based on income presently…if any modification would be done it would be based on what he is making now. He really got it socked to him when it was based on potentional income not actual.


#5

The amount of the child support and the alimony was mentioned in the agreement. It wasn’t even based on a calculator. It was $1500 a month for alimony (5 years) and $1200 a month for child support. Not to mention that this was a non fault divorce. There was no cheating…just grew apart and argued way to much. He is such a good guy and she really took advantage of him.

At only one point in his career did he make money comparable to support this. It was just a really lucky year and that is what they base everything off of. And trust me, he has been trying ever since to land a job that has the potential to come even close to that number. Currently and for the past year, he only makes about $2,500.00 a month. That’s right…the alimony and child support almost equal that.

Oh, did I mention that one the kids lives with us full time?

So we need modifications. We can’t afford a lawyer and she is going to put me in the grave!!


#6

I believe that these must be dealt with separately. The child support will need to be modified on the basis of custody and income change. If the children live with the father full time, it seems unlikely that he should still be paying her child support. Has this been the case since the separation agreement? The custody should be modified to reflect the current arrangement and then child support can be modified. I am uncertain if you can file for custody modification without an attorney but I believe that as long as the parents agree, the current custody order can be modified with little aggrivation. Maybe Erin can clarify what the steps would be for this to be done.

The alimony may not be able to be modified and fault is no issue, since he signed an agreement. Even if he had not signed an agreement she could still have requested alimony and possibly been awarded based on how long they were married and their incomes at the time of separation. If the agreement was for that amount for 5 years the question to ask is when that 5 years began, 2004 or 2006? Does he have records of all payments? The separation incorporated into the divorce would (I think) make this an order…may need that clarified.


#7

The are two children. One is 13 and the other 10. The oldest child moved in with us in April 2008 and lives with us full time. The youngest child lives full time with the mother. I agree, I think this can be modified and reassessed.

The alimony was based on 5 years from start of the agreement in 2004. Technically it was suppose to end this August. For the past 3 years, my fiance’ has only made enough to pay for rent, food, child support, etc. There was no money left to pay the alimony. In the agreement, it states that if the alimony is postponed, then it just addes more time to the term to be paid off.

My biggest concern, especially with the economy and his low income, this alimony will linger forever and is just not fair. I mean, seriously, she got half the house, 401k, drained his parents financially.

The most unfortunate thing, she has degree (two actually) and he doesn’t. She had proven that she can hold a job but chooses not to.

At this point, I guess I’m venting. Thank you so much for your advice.

Regards.


#8

I have been where are at - I am a step mom also of a 12 years old son and who don’t have the extra $$ to take the ex back to court- We are thinking of doing the same thing - modification of custody and have contacted our lawyer that we used before and he is working with us as far as his fee goes…We have had my husband ex in court first for custoday and then second for a show cause…Seem to be neverending…As I have seen on previous post - they recommend going to court and kinda scoping out attorneys in court to see them in action and try and pick on that best suits you…you can alway doing things yourself but with you will have to at least consult with an attorney for some guidance of paperwork. Some attorneys offer free consults or a small fee for consults. If you have one of the children that would help you with modification of the child support. One of the attorneys can advise you more about the legal standpoint of one of the children being full time with you (support). You may check with your local Social Services division for child support and ask if they could assist you with the modification of the child support part since you have one of the children.


#9

Thank you for lending your ear. It does seem enevitable that we must get a lawyer. It gets real sticky though when the divorce happend in NC. We live in SC, where she agreed to move to by the way and didn’t and she lives in GA now.

Child services was called on her by a neighbor before for her drinking issues. Yes…she is no saint. My fiance’ basically lied on her behalf if she agreed to move to SC for a co-parenting relationship with the two kids. We move, she didn’t. The case was closed and now she is still getting what she wants.

Country club lifestyle, wine in hand starting around 2 while I’m busting my butt trying to make a living for all of us.

Very frustrating. It seemingly causes a lot of issues for us but he is a good man and a great father and I obviously don’t love him for his money. So, we will keep hammering away.

And like you mentioned, it never really goes away. Not even when the graduate from highschool.

Aggggggggghhhhhhhh!

Thanks again though. Have a great day.


#10

There is really not enough information to properly answer your questions, but I will give you an overview:

a) If the separation agreement was incorporated into the divorce decree, which it appears you state below, then most likely the alimony is modifiable after filing a Motion to Modify.

b) Child support will be modifiable based on the Guidelines. However, if neither party lives in North Carolina, I cannot tell you what the court of another state will do. They should, more likely than not, modify the amount of child support based on whatever calculator that particular state uses. You should contact child support enforcement in your state to see how they recommend handling the situation. Sometimes you will have to initiate an action in whatever state she lives in.

c) There is something called “impossibility of performance” that can be used to relieve someone of an obligation in a separation agreement. However, again, you will need to determine if North Carolina even has personal jurisdiction over her before you can proceed. If not, you will need to proceed in a state that has personal jurisdiction over her.

d) Custody is modifiable from the agreement. You may want to contact legal services to see if your particular situation qualifies for help from them if you cannot afford an attorney. If you can, you should contact a local attorney to best advise you on how to proceed.


#11

I spoke with my fiance’ and he said that the divorce was finalized in 2006 but he doesn’t think it was filed with the court, only filed with the lawyer. Is this possible? Or does the lawyer just file it for them in court without them necessarily being there and that might be why he thinks it’s not filed with the court.

I know the child support and alimony are not court ordered. It’s basically a good faith policy.

With that being said, does that give someone more wiggle room for modification if it was never filed with the court?

Thank you.


#12

Again, you’ll need to clarify. There is either an actual agreement or there is no agreement. I’m not sure what you mean by “it’s basically a good faith policy”.

If there was an agreement, you will need to call the lawyer and ask specifically if it was incorporated into the divorce decree. It’s possible to “record” an agreement at the Register of Deeds, but that does not make it modifiable. It’s only modifiable if it was incorporated into the divorce decree. Agreements are also not “filed” with the lawyer.

If you have a valid agreement that contains no language about modification, then the only “wiggle room” is to claim impossibility of performance.

If you have a valid agreement that was incorporated into a divorce decree, it is more than likely modifiable.


#13

Non-incorporation of Agreement; Subsequent Divorce.

Nothing herein contained shall be deemed to prevent either of the parties from maintaining a suite for absolute divorce against the other based on the ground of speration as provided by law; however the rights and obligations hereunder shall survive any such divorce, regardless of who obtains or pertions for the divorce. The parties further agree that this Agreement and the terms hereof will not be made generally known to the public, and that this agreement will not be recorded in the Wake County Register of Deeds of Wake County or any other county in this state. The parties agree that the serpation agreement agreement may not be incorporated into a court judgement or order.

The terms is the seperation agreement regarding alimony and child support is what we go by. If was our understanding that this agreement was incorporated in the Divorce Decree.

The agreement also states this:

Modification

A modification, waiver or amendment of any of the provisions of this agreement shall be effective only if made in writing and executed with the same formality as this agreement. The failure of either party to insist upon strict performance of any of the provisions of this agreement shall not be construed as a waiver of any subsequent default of the same or similar nature

Thank you. You have been a big help in my understanding of everything.


#14

No problem! Just to make sure we’re on the same page:

The language in the Agreement says it will not be incorporated into a court order. Therefore, the terms in the agreement regarding alimony and child support will control. However, you may file an action for the establishment of a new child support amount. There should be language in the agreement that states child support will terminate upon entry of a court order.

Hope this helps!


#15

Ok. So you are saying because of the language in the agreement that the alimony and child support stands (or will control). The alimony is non-modifiable even if he doesn’t make enough money to pay it??? or can he still do a “impossibility of performance”

I’m clear on what we need to do on the child support. Thank you so much.


#16

Yes, that is correct. Alimony which is outlined in an agreement is not modifiable, and his only defense to non-payment would be to prove it is impossible for him to pay.


#17

Hello again!! Ok, so it has been determined that we would like to modify the child support and seek “impossibility performance” for the alimony based on the circumstances. In order to do so, it seems clear that we will need a lawyer to handle this.

Since the divorce agreement was filed in NC but the mother lives in GA and we live in SC…what state do we go to in order to hire a lawyer? Any guestimate on how much it would cost to have a laywer draw up the “impossibility performance” and modify the child support?

Thank you.