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Changing Agreements
My husband and I have filled out and signed a seperation agreement. Is it possible to make changes to the agreement? I feel as though it is not a fair agreement. Is it too late or can I request changes in the divorce papers? (by N of Cambridge, ON) First, my area of expertise is in the laws of BC and Canada. The law in Ontario might very well be different when it comes to separation agreements. That being said, here is my two cents... There are a couple of factors that come into play when you want to change a separation agreement: when was the agreement executed and what's changed since it was executed? While signing a separation agreement does NOT strip the court of its authority to make a decision about the same subjects as are covered in an agreement, even a contrary decision, the court will pay a certain amount of deference to an agreement. There is a strong presumption that you knew what you were doing when you signed the agreement and, when you signed it, you thought it was fair and reasonable. Normally, there must be a serious and unexpected change in circumstances before the court will orverride a separation agreement. Now, as I've said, having a separation agreement doesn't mean the court can't make an order about the same subjects as are dealt with in the agreement. If you want to, there's nothing stopping you from asking for an order contrary to the agreement in your divorce action (bearing in mind, of course, that you must have asked for the relief in your original pleadings). Your husband will still be able to argue that the agreement was fair and is reasonable, so you must prepare to meet this argument. If you are at all able to talk about this with your husband, why not try to negotiate an amendment to the separation agreement? This will be a heck of a lot cheaper than arguing about it in court. If you can, I urge you to consider negotiation revisions to your separation agreement! Click here to go to the top of this page. My boyfriend and I are wanting to know about if its possible to make changes to a separation agreement that he made with his ex wife. He feels that he was mislead when he signed the papers. They owned a home together and she is living in the home. They had 2 children who at the time of signing were age 18 and 19. He owed arrears of child support for about $4400. She wanted to buy out his part of the home which they agreed was worth $26600. He also owed about $7000 in difference of assets to her. She told him that the oldest of 19 was enrolled in a professional program to start in March of 2003. The agreement was signed in November of 2002. So he signed over the house for the arrears of child support, the difference of assets, and child support for his oldest while she finished school. She never did go to school... instead she is working full time at the part time job she had through school making around $22 per hour and she just purchased a $39000 car. So we do not see her pursuing school over the next 5 years. He feels mislead that she was going to return to school and feels he over paid his ex by about $10000. Can he seek legal action in this? We feel that she just wanted the children living with her for the child support. As soon as the other girl turned 19 she was kicked out of the house 2 months after. (by M of Cyberspace, BC) That's a tough question. If I understand the basic facts, he signed over his interest in the family home to pay out some arrears, make some other payments including balancing out his share in the assets, and to make a large advance payment of child support. The advance payment of child support was based on an assumption that the children would be pursuing post-secondary studies and therefore remain eligible for child support past the age of 19. The agreement was signed a year ago. Neither child is presently attending post-secondary studies, and it seems that neither will do so in the foreseeable future. Based on these facts, I see three options.
I have not gone into any of these options at depth because in my view the facts are somewhat unusual, partly because of the advance payment and partly because the agreement was executed so recently. As well, the law which would deal with this situation is fairly complex. What I've given you is a sketch of what I see as your immediate options; I really cannot give you any better of a diagnosis in the circumstances. I strongly recommend that you and your partner arrange to meet with a lawyer in your neighbourhood as soon as possible to discuss the situation. You'll be able to discuss things in a lot more depth than is possible via email, and you can use the opportunity to get the lawyer's take on things and his or her opinion of your chances of success. You do not have to hire the lawyer, but you do need, at the least, to get a better answer than I am able to give you in this context. Click here to go to the top of this page. After 13 years of my step-son living with his mother, [as of] this year he is permanently residing with his father and I. As per the separation agreement, his father is no longer obligated to pay her child support as the "child does not reside with the wife." We have asked, but she has refused to pay any child support. She still has one child from a previous marriage at home with her and her "soon to be" common-law boyfriend. She said she can claim "child support underpayment" for the last 13 years, in affect forcing my husband to pay more than what the original order stated. As well, claming "parental hardship" which she feels would basically relieve her from making any support payments at all. I've done hours of research but can't find any reference to retroactive child support payments-other that arrears-but my husband has not missed one payment in 13 years or the "parental agreement act" which she cites to claim hardship. Is she out to lunch and should we proceed with changing the agreement? (by T of Kelowna, BC) It really isn't as confusing as you think. Firstly, if the child is now living with you and the father, the mother is obliged to pay child support to the father. End of story. Essentially, the mother is threatening to claim a retroactive increase in the child support payable while the child was living with her based on your husband's increased income during that period. She stands only a slim chance of success since the if she was successful, the money would plainly benefit her and not the child. She stands a similarly slim chance of success in making an undue hardship claim. Those rarely succeed. Finally, there is no such thing as a "parental agreement act;" the mother is, as they say, blowing smoke. While there are a number of cases that have allowed retroactive increases in the amount of child support payable, it seems to me that your husband still is in a good position to apply for an order requiring her to pay support while having only a negligble exposure to a claim for a retroactive increase in support payable to the mother. I would strongly suggest that you and your husband meet with a family law lawyer in Kelowna to review your position in more detail. You don't have to hire the lawyer, but it'd sure be good to get his or her perspective on your situation. As I tell the majority of my clients in my private practice, whenever the person on the other side tells you what the law has to say about a particular issue, you're virtually guaranteed it's not entirely accurate and almost always designed to benefit them, not you. Please read the section on child support in my website thoroughly, it should help you figure out what's legit and what's not. Click here to go to the top of this page. Site Navigation
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