I have a sepperation agreement signed by both parties and the judge. Can I petition to have my alamony reduced ?

Asked over 2 years ago - Salem, VA

My soon to be ex wife makes $82,000 a year and I make $65,000 a year. I did not have an attorney and hers drew up the agreement. What are my chances of getting it reduced?

Attorney answers (3)

  1. Mary G. Commander

    Contributor Level 16

    3

    Lawyers agree

    Answered . It can be changed ONLY if either she agrees or there is a provision in the Agreement that permits it to be modified. Even if the Agreement permits modification, you still would have to show a material change of circumstances since you agreed to it.
    I am assuming in answering this that you do not have some legal defense to the validity of the entire Agreement ( such as fraud, duress) and that you just made a bad deal. Courts make adults live with their bad deals. They make a consultation with a lawyer prior to signing the Agreement look pretty cheap in comparison to the support you are paying! No one should sign anything unless they understand all of the consequences up front.

    This response does not create an attorney-client relationship and is intended for general information purposes only.
  2. H. Eugene Oliver III

    Pro

    Contributor Level 12

    3

    Lawyers agree

    Answered . It depends on whether alimony is modifiable/non-modifiable. If it is modifiable, then you will have to prove a material change of circumstances from the signing that would warrant an adjustment. Just because it is a bad deal, doesn't mean that a court will change it. I would consult with an attorney to see if there are any material changes in circumstance that would warrant a justification.

  3. Jennifer E Mandell

    Contributor Level 15

    1

    Lawyer agrees

    Answered . Your statement seems to imply two different questions:

    (i) SInce she had an attorney and I did not and she makes more money than I do, can I now contest the agreement and have it set aside?

    (ii) If I cannot have the agreement set aside, then can I have the support amount provided for in the agreement changed/reduced?

    In order to answer the first question, I am going to assume that when you the agreement was signed "by both parties and the judge" what you mean is that both parties signed the agreement and the judge "approved, ratified, and incorporated (but did not merge)" the agreement as part of a court order. I make this assumption based on the fact that the agreement is only ever signed by the parties as it is between the parties not the parties and the judge. Judges don't sign the parties' separation agreement, judges approve, ratify, and incorporate those agreements into orders of the court.

    So, assuming that there is a court order affirming the separation agreement, then in order to even raise the issue of objecting to the court's acceptance of the agreement you must TIMELY and sufficiently note your objection and move the court to set aside the agreement. In order to properly preserve the issue for the appellate court (should that become necessary) you really need to note your objection, the basis for that objection, and move the trial court to specifically rule on your objection and your proffer of evidence and legal arguments before entry the final order in the case. If a final order has already been entered, then you can attempt a Hail Mary pass by filing a Motion for Reconsideration with trial court WITHIN 21 DAYS of entry of the final order (please note that the court of appeals has recently been ruling that these motion for reconsideration after-thoughts at the trial court level may not constitute timely preservation of objections for appellate court review).

    The other alternative is to file a Notice of Appeal WITHIN 30 days of entry of the final order by the trial court. However, for the reasons stated above, the appeal is likely to be summarily dismissed unless your objections to the settlement agreement were timely noted and preserved for appeal at the trial court level.

    Having said all of that, even if you can still timely attack the validity and/or enforceability of the settlement agreement, you must have a cognizable defense under established contract law.

    Pursuant to Va Code Section 20-155, a marital settlement agreement is valid IF:
    (i) it was voluntarily signed by the parties (meaning that neither party was operating under such extreme circumstances of duress, such as a real threat of death or great bodily harm, that their signing the agreement could not be found to be voluntary)
    (ii) appropriate financial disclosures have been provided by both parties
    (ii) if no financial disclosures have been made, then the parties had the opportunity to ask for such disclosures but chose not to do so

    Assuming it is a valid agreement, then is there a legally cognizable defense to the enforcement of that contract? The two most common defenses that we see in the context of marital settlement agreements are FRAUD (i.e., your spouse stated her income as $42,000 per year and altered her pay documents and this lie is what caused you to agree to the support amount) and UNCONSCIONABILITY (meaning that the terms of the contract are so disparate between the two parties as to "shock the conscience" of the court). While it does seem unusual and somewhat suspect that the spouse who makes $20k less a year is the one who will be paying spousal support, that fact alone does not necessarily scream unconscionable contract -- there could plenty of entirely fair reasons for this when the contract is viewed in its totality.

    If contract is valid and enforceable, the next question is whether the support provision is modifiable, which the other attorneys have addressed at length.

    GET AN ATTORNEY NOW is the bottom line!

    This response does not create an attorney-client relationship and is intended for general information purposes only.

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