It is not uncommon to see a separation agreement that includes a support provision, whether alimony or child support, that is recalculated on an annual basis or at some other interval. This is sometimes necessary when one of the parties has an income source that fluctuates annually or in anticipation of a change that would impact support, such as a child becoming emancipated, going to college or turning 18-years-old, or a party obtaining employment.
These provisions can be great tools for keeping the parties out of court in the future, but they can also be problematic. The most common issues lawyers see with a self-modifying support provision are as follows:
- The parties ignore the provision;
- The proper documentation is not exchanged at all or in a timely manner;
- The parties disagree on the correct amount of support; and
- The court does not know how to enforce an agreement that has gone through multiple out of court changes.
Despite the pitfalls associated with out-of-court modifications of a child support or alimony provision they still serve useful purposes and are at times the only option for keeping parties out of court in the future. There are, however, things to keep in mind if you are considering this type of provision. If you are supposed to recalculate any figure annually it is a good idea to put reminders in your calendar to do this each year. You also want to ensure that there is a paper trail of these exchanges or in the very least your request to exchange these documents.
If you do modify your agreement in anyway you should also put any changes in writing. Ideally, this agreement on a support modification would be a formal agreement submitted to the court for approval, but if you are not willing to submit the agreement to the court the agreement should still be signed and notarized by both parties and contain language saying that it will have the same effect as an order of the Court and that either party can submit the new agreement to the court for approval at any time.
You should also pay your support via check or direct deposit into the other party’s bank account in order to keep a paper trail of all the payments being made.
The reason you want things documented is because if at some point in the future the other party alleges you did not pay or recalculate support as required you will have proof to show the court that you did pay in accordance with the court order.
Seeking enforcement of a self-modifying order from the court in the form of a contempt can be very difficult without being able to show that you attempted to take the steps outlined in the agreement and what the support figure should have been at the time it was supposed to be modified. The easiest way to avoid this situation happening is not sit on your rights and file a Complaint for Contempt immediately.
If you have a self-modifying support provision in your separation agreement and are looking for help making sure you are in compliance the attorneys at Mansur Law Group can make sure you are protected and doing things correctly. We can also help if your spouse is not adhering to or following the court order. If you are considering hiring a child support or alimony attorney and want to understand all your options, then please call us at (978) 341-5040 for a consultation today.
Image provided by Child Support by Nick Youngson CC BY-SA 3.0 Alpha Stock Images