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FS-Becareful of Bargaining Away Alimony As Child Support
Jan L. Warner & Jan Collins

Question: My wife and I settled our divorce several years ago after she ran off with another man. In our property settlement agreement, my lawyer worked out a deal where she was not awarded any alimony; however, to help her get on her feet, I agreed to pay more than double the child support she could have gotten for our six year-old son. These inflated payments were to automatically reduce by one-third if and when she married and by another 25% if and when she went back to work. My prayers were answered (or at least I thought) when, within two months, she both remarried and got a job.

As agreed, I reduced the child support I was paying, but she has now sued me for contempt. My lawyer (another one) tells me that the parts of the agreement dealing with child support are not valid even though the same court approved our agreement nearly four years ago. I can’t understand why.

Answer: Because child support is established to meet the needs of your child, as parents, you and your wife can neither alter nor bargain away your son’s right to receive sufficient support. Regardless of what the court did then, your agreement is not binding on the court today if it does not meet the needs of your child. But don't feel too bad: You will find plenty of company caught in the snare of using children to negotiate agreements. For example, some custodial parents will say "No child support if you give up visitation." You give up visitation and then a suit is brought asking the court to set child support. What can you do? Probably not much because you cannot negotiate away your child's rights.

Your salvation, however, is that now your ex-wife is working and remarried, two positive factors that place her in a better financial position than she was when you divorced. And, depending on the law of your state of residence, her new husband’s income and assets may be a relevant consideration. In actuality, your child support obligation may be reduced --- but not automatically. You and she can expect to hefty attorney fees unless you and she can negotiate now. Your situation is one where you would have been better off paying time-limited alimony for a short period of time rather than trying to disguise your payments as child support.

Question: After 25 years of marriage, my second husband left me and our two children for another woman. Since he wouldn’t talk to me, I hired a lawyer who, in the course of review, found that shortly before my husband left me, he had set up an irrevocable trust with more than $200,000 of the funds we accumulated during our marriage. I had no idea about this because I did not handle any of the money. To add insult to injury, he named his son by his first marriage as trustee. Even though everyone can see that my husband did this to try to reduce my share of the property, my lawyer tells me nothing can be done in family court and that I must sue him and his son in another court. This just doesn't seem right to me. Should I get another opinion?

Answer: Yes, and quickly. Because the family court is a court of equity, it would appear to us that the trust and your step-son as trustee should be made parties to your family court action where authority exists to deal with all issues. To make you litigate similar issues in several courts thwarts “judicial economy” which favors, when possible, one court making all possible determinations.



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Suggested Reading:
Separation and Divorce Guidebook
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FS-Be Wary of Credit Issues with Ex
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FS-Becareful of Bargaining Away Alimony As Child Support
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FS-Lawyer Tells Me to Lie & Pension Double Dipped
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FS-On and Off Again Reconciles Can Create Agreement Disasters
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FS-The Dangers of Family Loans
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FS-Transference of Affection & 10 Tips of Divorce
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