Avoid Creating Your Own Nightmare

By Yueh-Mei Kim Nutter, Esq.

Understandably, you want to avoid the court system.  Understandably, you want to avoid attorneys and legal fees.  After all, you already went through this once and have a Final Judgement and that includes payment for child support and/or alimony.  You were able to reach an agreement with your former spouse or the other parent that changes some of the terms of the existing court order.  Isn’t that enough?

No, it isn’t!  When it comes to changing the terms of agreements that are a part of court orders or changing court orders by agreement, completely avoiding the court system will almost always result in a horrible nightmare of legal fees.  How can that be?  You and your former spouse, or the other parent if you were never married, have just agreed that one of the children would go live with the other parent.  Or, you agreed that the child support or alimony would be reduced.  You both lived by these oral agreements, at least for a while. Sometimes the agreements are in emails that were actually saved, and sometimes the agreements are in a letter signed by both of you.  You did it without attorneys or courts when you and your former spouse were getting along fabulously… until you weren’t!

Now the other parent is demanding full child support.  Or your former spouse is demanding the full monthly alimony.  Now you are being threatened with contempt of court.  In both cases, the other person denies any oral agreement existed or denies the agreement was a permanent change. Ahh… but you have that email where your former spouse agreed to reduce the alimony by $1000/month or agreed to let your child reside with you and for you to stop paying child support.  Why isn’t that enough for the court?!

Because the law provides that you are obligated to pay the child support or pay the alimony set forth in the last Final Judgment or last Final Order until it is MODIFIED BY ANOTHER COURT ORDER! Your oral agreement, your emails and your letters are not modifications of a court order.  The court isn’t required to – and many times, won’t – accept those emails or letters, particularly when the other spouse/other parent is denying them or denying they were permanent.

Sure, you can now file for the modification, but that doesn’t allow a retroactive reduction of child support or alimony for the last four years or however long ago the “friendly” agreements were reached.

But you say, “It’s so simple.  My eldest child turned 18 years old and graduated from high school five years ago, so you don’t owe any child support for that child.”  True, but child support is still required by law for the younger children.  Yes, you kept paying child support for the younger two by paying two-thirds of the original amount.  Then when the middle child graduated high school three years ago, you reduced the child support to half of what you were paying.  While you may not be in contempt of court, you likely owe more child support because you can’t just cut the child support in half, thirds or fourths for however many minors are left.  The child support has to be modified each time and it will be based on your income, your former spouse/other parent’s income and the timesharing at the time each event happened. In this example, recalculations were needed when the eldest child, and as each child, graduates from high school.  The nightmare of determining what the incomes were and timesharing was each time a modification should have occurred has now started!  You can’t find the paperwork to prove what you paid or to prove what you earned. And you have no idea what your self-employed former spouse was earning when the two older children graduated high school.  The legal fees and court costs that you were so proud you avoided are now piling up.

If only you had created a simple written stipulation of your friendly agreement, had it signed by you and your former spouse/other parent and then made part of an agreed court order signed by the judge.  Had that been done, then you wouldn’t be in this pickle!

Reaching agreements is always good. Take the next step and contact an attorney so those agreements can be written, signed and ratified by a court.  Avoid creating a future nightmare!

Kim Nutter is a Florida Bar board certified specialist in Marital and Family Law with more than 20 years of experience. She concentrates her practice in the areas of marital and family law, civil litigation, guardianships, and probate and estate litigation.  She can be reached at 954-522-2200.

By |2018-04-23T15:20:04+00:00April 23rd, 2018|Blog, Marital & Family Law|