Are you and your spouse looking to enter into a "Marital Settlement Agreement?" It's not so easy to have it amended. : BLOG
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Are you and your spouse looking to enter into a "Marital Settlement Agreement?" It's not so easy to have it amended.

by St. Petersburg/Florida Family Law Attorney on 02/04/16

Lets look at the following question that a potential client in St. Petersburg, FL asked pertaining to a drafted "Marital Settlement Agreement."  

Question:  I am looking to get divorced and recently signed a marital settlement agreement with my spouse.  After it was signed by me, I wondered whether it was the right decision.  I determined I was not happy with what I signed and the terms I agreed to.  Is it possible that I can change the agreement?

Answer:  As an attorney in St. Petersburg, FL, I often run into scenarios such as the one described above when rendering legal advice.  To begin, we must note that a marital settlement agreement is a contract.  Any challenge or effort to change these types of agreements are usually in most instances subject to contact law.  As a result of your marital settlement agreement being a contract, it is subject to contract law.  The contract can usually be changed by agreement of the parties.  However, if there is no agreement, it can be difficult to change.  

Due to the fact that a marital settlement agreement is a contract, it must be challenged as a contract.  Grounds which might allow a successful challenge include mutual mistake.  That means the parties agree to one thing, however, the written document does not accurately reflect what they agreed to.  A unilateral mistake in most instances would not suffice as having a marital settlement agreement rendered void.  

On the other hand, if the agreement was the product of fraud or coercion, it might be successfully challenged.  That can be the case where one party is represented by an attorney and the other is not.  It can also be the case where one party conceals assets and/or bullies the other party into signing the agreement.  

Within the marital settlement agreement, there are areas in which the court can most easily modify marital settlement agreements.  These areas are child support and alimony.  Section 61.14 Fla. Stat. provides the courts with authority to modify these issues, even when the parties have agreed beforehand.  One recent case that illustrates this example is the recent case of deLabry v. Sales

In the Sales case, the parties had agreed to a child support amount which was to be paid by the former husband (per a marital settlement agreement).  The agreement was incorporated into the divorce judgment.  Approximately four years after the divorce, the former husband petitioned the court for a child support reduction on a basis of "change in circumstances."  Per the Florida statute, they provide for a modification of child support if there is a substantial change in circumstances of the parties.  The substantial change that the husband alleged, was that the wife had transformed from a stay at home parent, to a full-time employed lawyer.  While on the other hand, the former husband's income had dropped substantially.  The trial court ruled in favor of the former husband and the former wife then appealed.  The appellate court denied the appeal in a 2 to 1 decision.  The appellate court notes that child support obligations under a marital settlement agreement are modifiable as a matter of law.  Child support is a right of the child and cannot be contracted away by the parents.  The courts have inherent authority to enter and modify support orders.  The court noted that following 3 prong test had to be met and established:

  (a) a substantial change in circumstances;

  (b) a change that was not contemplated at the time of the final judgment; and

  (c) was sufficient, material, involuntary and permanent.

The court also agreed that the modification should be made retroactive to the date circumstances changed, not merely to the date the petition was filed.

Please remember that most aspects of a marital settlement agreement are almost impossible to change.  That's why it's very important that you retain an attorney in St. Petersburg, FL that is competent in the area of Family Law.  Child support and alimony are exceptions to the rule.  If an issue like this arises for you, please do not hesitate to reach out to us for a free consultation over the phone, or a low cost in-office consultation in our St. Petersburg office and let's see if we can help!

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