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Is this a valid contract, and is the Clerk of Courts office correct that this is small claims and not family law?

Wisconsin Rapids, WI |

In the matter concerning the divorce of * and *, we agree to the following financial compensation:
* will pay * $10,000 in monthly installments until full amount has been satisfied. The amount will be paid as fast as financially feasible. Once this compensation is satisfied, there will be no other compensation required. Both signed and dated 5 days before divorce, but never presented to or read into court or official divorce decree.

The Clerk's office claims because this was not in the official decree, and the court/judge have no knowledge of this document, it cannot be sent back to family law, and must be seen in Small claims because of that fact, regardless that it clearly states it is in the matter of our divorce. Ex also waived all rights to maintenance in our official decree.

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Attorney answers 3

Posted

If the agreement was not incoporated into the judgment of divorce, the provisions of the judgment of divorce controls. Why was this agreement not presented to the Court during the divorce action? The divorce pleadings, and ultimately the parties at trial, should have informed the court of the premarital agreement. While Marital Property Agreements are given a general presumption of validity, if your question sets forth the complete agreement, I doubt that the Family Court would enforce the agreement (especially if there were no attorneys involved and no financial disclosures where exchanged at the time of entering into the agreement). As for a small claims action to the enforce the agreement, while you can certainly file a small claims action on this, the Court will most likely not uphold this agreement and there is a good claim for dismissal based upon issue/claim preclusion. The agreement's terms contradict the terms of the subsequent divorce judgment. As stated previously, the divorce judgment controls. While there may be an argument to vacate the divorce judgment based upon the existence of this agreement, the Court is not likely to be happy that this information was not appropriately presented during the divorce action.

My answer does not make me your attorney or create a former-client/current-client relationship with you. I encourage you to speak with an attorney before acting upon any of the statements I make. If you would like to speak with me further about your issue, please schedule a free initial consultation (in person or over the phone) by calling my office at (920) 459-8490, or by emailing me at info@klpplaw.com. You can also visit www.klpplaw.com for more information.

Nicholas J.B. Pasquale

Nicholas J.B. Pasquale

Posted

May answer above assumes that when you say the agreement was signed "before divorce", you mean before the divorce filing. If you mean that the agreement was signed during the divorce action, but prior to judgment, may answer remains the same as to enforcement of the agreement. The agreement was a marital settlement agreement that should have been presented the court, approved, and incoporated into its judgment.

Nicholas J.B. Pasquale

Nicholas J.B. Pasquale

Posted

The allocation of debts, division of property and the waiver/denial of maintenance are final as of the date of judgment.

Asker

Posted

It was not entered into court mainly based upon the fact that my ex did not want to pay taxes on the monies. It was an under the table deal, and partly because of this is why she waived maintenance in our official decree. The document was signed after I filed for divorce, but before our final court date in which the decree was finalized, with a separate and different document approved and read into court for compensation.

Nicholas J.B. Pasquale

Nicholas J.B. Pasquale

Posted

The money could have been treated as a property equalization payment which would have avoided the ex having to delcare the money as taxable income. While there may exist a claim to vacate the judgment (in my opinion, little to no chance of success) based upon this side agreement pre-judgment, presently the agreement in not enforceable either in the family court or in small claims. On what basis did your ex state to the court that she was agreeing to waive maintenance?

Nicholas J.B. Pasquale

Nicholas J.B. Pasquale

Posted

If ex said that she was waiving maintenance because she could adequately support herself at a standard of living reasonably comparable to that enjoyed during the marriage, that she is employed and that she does not suffer from any mental of physical disability that would prohibit her from working full-time, ex is going to have to explain why her statements to the court at trial were at best incomplete, or at worst, overt misrepresentations. If ex files any claim in this matter, give me a call at (920) 459-8490 to discuss further. Hope this helps.

Asker

Posted

The judge did not ask the reasoning for waiving the maintenance. He only asked if she wanted to waive it, and then asked a second time stressing that if she waived it, she could never seek it in the future.

Asker

Posted

Thank you Nicholas, you gave me a lot of valuable information.

Nicholas J.B. Pasquale

Nicholas J.B. Pasquale

Posted

welcome

Posted

It is not a family law matter because it is not in your decree. It is a small claims or contract matter to enforce a promise.

Posted

You may have a problem enforcing your agreement because of the "as fast as financially feasible" language. That is "indefinite," which is one reason a contract won't be upheld by a court. You would probably not be allowed to testify as to what one or both of you thought it meant. Hate to say this, but it's a great example of why people should hire lawyers to do complex legal work. If you break a leg, please don't do DIY surgery. Find a good orthopedist.

I am not your lawyer unless you and I agree in writing that I should represent you. Until that happens, any answer I give you on Avvo does not constitute professional legal advice from me to you.

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