Changing of Separation Agreement

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Changing of Separation Agreement

Postby carolinagirl » Thu Mar 06, 2003 9:03 am

Since NC Courts do not usually change the conditions of a separation agreement, under what circumstances might they change it and how generally how often does this happen? My ex thinks our agreement is unfair and that is the basis for his change request. But, he agreed to it at the time of our separation and at the time of our divorce. He has not had a negative change in salary either.
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Postby n/a » Thu Mar 06, 2003 10:04 am

It would depend on your individual agreement. Generally, the only parts that may be changed would deal with child support. For the court to decide not to uphold the terms of a separation agreement, the terms would have to violate public policy in some way that would shock the conscience. However, a provision that a party believes is unfair, without any specific reason is not likely to be enough to make a court amend the terms of the agreement. I would review the agreement with the attorney who drafted the agreement, or another attorney, if you believe there are provisions that could possibly be overturned.

Shonnese D. Stanback
Attorney
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
919.256.1534 direct voice
919.256.1667 direct fax
919.787.6668 main voice
919.787.6361 main fax
http://www.NCdivorce.com
email: sstanback@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.
n/a
 

Postby carolinagirl » Wed Mar 12, 2003 12:01 pm

Thanks for the information. When you say it would need to "violate public policy in some way that would shock the conscience" what is an example of what that would be?

In the reply my ex sent to my lawyer he has several counterclaims. One is to set aside the separation agreement. Does that mean he want to to be tossed out and renegotiated? It also states in this counterclaim that he is a resident of Florida. What does that have to do with our case? He claims that the agreement is unfair and his lawyer has pointed out that he signed the agreement without the advice of counsel. That was his choice - I did not make him sign it without consulting his lawyer. He wanted to sign it so he could get out of town and move in with his woman. He is claiming it is a financial impossibilty for him to comply with the agreement.

In one of his other counterclaims he is also requesting a deviation be made from the current guidelines of child support. Does that mean he wants support to be set without using the guidelines set forth by the state? If so - how would they determine his support?

One more question - he is supposed to give me a 5% increase in my "alimony" each year and he has not done so. Does this make him in arrears? If so - will this help me in any way?

Thanks!!
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Postby JanetFritts » Thu Mar 13, 2003 9:50 am

Dear Carolina Girl:

Let me try to explain my thoughts here. First, it appears that you are in litigation with him. Without seeing the Complaint, Answer & Counterclaims, and Reply here is what I think:

1. He no longer agrees with the terms of the separation agreement, and is asking the court to act as if the agreement does not exist. It appears that you sued him first, from your letter below, so I do not know if you violated the agreement by doing this.

2. Your original question, and the question below, depend on what issues you settled in your separation agreement, what has changed since the separation agreement was entered, the situation and circumstances surrounding the signing of the separation agreement, etc.

3. Sometimes, a client will sign a separation agreement and then become faced with a tragedy, like a job loss, illness, or disability. When that happens, it may be an impossibility for that person to follow through with the terms of the separation agreement. In these cases, I recommend to my clients to try to work with the other party on solutions that benefit both of them, but keep the parties out of court.

4. Child support is generally set by looking at the parties' current income, child care costs, and medical insurance. A deviation from the child support guidelines is where one party asks the court to make the paying party pay more than the guidelines say they should, or less than the guidelines say they should, but not that the guidelines are not used at all. The guidelines are presumptive in North Carolina, which means that we first look to the guidelines, and then ask the court to change that amount - or deviate - for some reason.

5. If he is not following the terms of your separation agreement, you can always initiate a claim for breach of contract.

Lastly, it sounds like you have a number of questions that are not being answered by your current legal representation. I suggest that you write your questions out to them, set a meeting, and get your answers directly. Best of luck.

Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
http://www.NCDivorce.com
919-787-6668

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.
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Postby carolinagirl » Fri Mar 14, 2003 8:09 am

My ex has breeched our agreement in several ways ranging from not providing me with his current address to taking my child out of the state without my knowledge or permission. In the fall of last year he send me an email stating that he was going to cut the money he sends me each month by more that half. He was already behind over $4000. I responded and told him I would not accept this and would take legal action if necessary. I ended up meeting with my lawyer and suing him to have the money garnished from his salary. Since the agreement we have is not "incorporated" into the courts, my lawyer said I would have to bring suit upon him to do this rather that just submit the paperwork requesting this. My lawyer said this would not open it up for him to take me to court, but that's just what seems to have happened. He has retained a lawyer and has filed a counterclaim. In his counterclaim he wants to set aside the agreement, to deviate from the state's child support guidelines, and dismiss my request for ganishment.

We were married for almost 16 years and have one child who I have sole custody of. She is 8 years old. I did not make him leave, I wanted to work things out, but he wanted to move to Florida to be with the person he had been seeing in secret for 1 1/2 years.

When he left I assumed ALL of our debts and he left the marriage debt free. I did get the house and its contents (I have had it quit claimed and refinanced in my name). In your opinion, do you think he has a chance to change the things he wants to? I do receive more that most do for alimony, but remember, I assumed all our debts. He has not had a decrease in salary (but has had an increase). After we separated he and his girlfriend (the reason we split up) bought a new house (don't know whose name it is in) and then she lost her job and was rehired at a job with less money. Therefore, THEIR income has decreased, but his has not.

I am afraid that the judge will "pull the rug out from under me and my daughter and we will lose our home and I will have to get a second job to support us. Is this possible?

Thanks for providing this service. My lawyer has had surgery and isn't due back for a while and in the mean time, I am going nuts worrying that my life is going to crash around me and my daughter. Your responses are GREATLY appreciated.

Thanks -
Carolinagirl
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Postby n/a » Mon Mar 17, 2003 4:23 am

Carolina Girl,

You seem to be very concerned about surprises that may result from litigation of your case. Based upon the information you have provided, and without knowing any other details, I do not believe the court will "pull the rug out" from underneath you and your daughter. The court's decision may require some financial adjustments for both you and your ex, but his alleged failure to comply with the terms of the agreement will also be a consideration for the court.

If your attorney is not available for consultation, I suggest talking to another attorney in their office who may be covering cases for your attorney. You have some very real concerns that should be addressed in detail by your current attorney.

Take care, and best wishes!


Shonnese D. Stanback
Attorney
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
919.256.1534 direct voice
919.256.1667 direct fax
919.787.6668 main voice
919.787.6361 main fax
http://www.NCdivorce.com
email: sstanback@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.
n/a
 

Postby null » Mon Mar 17, 2003 7:53 am

Once an agreement has been incorporated, how can changes be made for mutual mistakes? If changes are allowed - would the addendum also have to be incorporated?
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Postby LeeRosen » Tue Mar 18, 2003 3:39 pm

Changes would be made by submitting a consent order to the court for signature by a judge.



Lee S. Rosen
Board Certified Family Law Specialist
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
http://www.NCdivorce.com
(919)787-6668

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.
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Joined: Wed Jan 22, 2003 3:58 pm


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