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Roger
Roger, Attorney
Category: Family Law
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My wife and I divorced thirty years ago after a 20 year marriage.

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My wife and I divorced thirty years ago after a 20 year marriage. The separation agreem ent was filed as a survival document. The separation agreement said that alimony was to be increased in accord with COLA each year. In 1985 my ex wife made a claim for the COLA which i had not paid until then because there had been no cost of living increase.
I argued that she now lived in a condo and was no longer providing a home for our three sons and that the alimony based on cost of living should be reduced. The lawyers suggested that we exchange Income Tax returns each year and adjust alimony and COLA accordingly. My ex and I decided that this was too combersome and that I would no longer ask for a decrease in alimony and she would no longer ask for COLA. We have lived by this agreement for thirty years and though it was never recorded in it court, she
has acknowledged it in e-mails and even said she no longer needed the alimony.

My question is, under the new law--since I am 15 years past the retirement age--t I can request termination of the alimony after a year. What I am not sure about and what
I need your expert opinion is whether our informal agreement would in anyway annul the original separation agreement that is a survival document?

Thank you,

David Elkind
Submitted: 2 years ago.
Category: Family Law
Expert:  Roger replied 2 years ago.

Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney here to assist you.

 

Your oral agreement would not supersede or trump the separation agreement that you executed and that was approved by the court.

 

Generally, an oral agreement is only valid and enforceable if it will be completed within 1 year. Since you're long past this, your agreement would not be any good IF either of you reneged on the agreement.

 

The only way to modify the agreement is by filing a petition with the court and ask it to modify the court order to reflect your oral agreement and the way that you've been conducting business for the past several years. The judge certainly can modify the agreement to reflect this change. However, if you don't take this step, your security is only as good as your trust that your ex will not have a change of heart.

Customer: replied 2 years ago.
What are my chances if I take this step, we have honored the agreement for thirty years?

Thanks

David
Expert:  Roger replied 2 years ago.

If you can get your ex spouse to agree to this or not. If your ex will agree, it should be no problem.

 

If the ex will not agree, it will require a legal proceeding to convince the court that the change is appropriate. I think you have a good claim for that because of the pattern and practice of your activity over this long period of time, I think that the court would be inclined to allow the change to be officially made by the court.

 

That said, I think you have a good claim, but I can't promise you that you'd win or lose as there's no telling what the judge may do.

 

Roger, Attorney
Category: Family Law
Satisfied Customers: 26131
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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