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Samuel II
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 21928
Experience:  General practice of law with emphasis in family law.
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My wife and I have been going through a divorce since summer

Customer Question

My wife and I have been going through a divorce since summer 2011 and it is completely depleting me. I signed a Marital Settlement Agreement on
Friday, June 21st 2013, without the knowledge that my pay for last year would be retroactively affected. I was receiving housing allowance which inflated my pay. Now, my pay for the last year will go down by $3000 and I will have to pay the government back the entire year of overpayment. I also have to repay having her as a dependent on my orders (I am a DOD teacher overseas), she removed herself in December of 2011, and began receiving benefits as a single person, without letting me know and now I am responsible to pay that back as well. I will have to repay $45,000 to the government. The agreement I signed, I agreed to retroactive child support based on the inflated income amounts. I agreed to lump sum alimony to just get it over with and equity in a jointly owned home. I don't know if I can rescind the agreement I signed with a notary.

We both got the email about the over payment, we work at the same place. The emails were sent to our work email. I was not at work, for summer vacations and did not have access to my email. She was working and did have access to the email and the information. Can I retract the agreement based on this?

She makes it difficult for me to see the children, she has been stealing my mail to look at my financial movements. I am completely overwhelmed. I do have a lawyer, but signed the agreement before having her review it because my soon to be ex said it would have to wait several more weeks if I did not sign it.
Submitted: 1 year ago.
Category: Family Law
Expert:  Samuel II replied 1 year ago.

Welcome and thank you for your question



I am an attorney with more than 25 years of experience and I look forward to providing you true and correct information in this regard.

Please remember, I can only answer what you ask and so if you have follow up questions, please post them here for full and accurate information before rating. If there are no other questions in this regard then I thank you in advance for your positive rating

I suggest that you can Petition the Court to set aside the MSA that has been signed June 21st 2103.

 

And, I suggest that you can talk to your attorney about that.

 

Keep in mind, however that Child Support is based on one's "earning capacity" and so it may be that the child support will never change and you will be required to pay it and the Court will not care if you have to work 1, 2 or 3 jobs to do that.

 

Now, if there is inconsistency with the MSA because there is money that your ex should also be paying back, then that is something the court will surely consider.

At any rate,, filing the Petition to Set Aside the MSA is the first step.

 

 

Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 21928
Experience: General practice of law with emphasis in family law.
Samuel II and 7 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you for you prompt reply. I will be in Pensacola for about 3 weeks and may have to find a new attorney. My current attorney and I have communication problems and I feel that much of the time I have been left out of the loop. We are two years into the divorce and I am wait months thinking there is progress only to find out there has been no movement. I am not sure if that is normal.

I know I made a mistake by signing the MSA without reviewing it with my lawyer, but I hope it is not too late. I will looking into the Petition to Set Aside the MSA. Is this Petition filed even if it was only notarized and not signed by the judge yet?

Below, is the the email I sent my attorney, she said she would email my wife's attorney to let him know I would like to rescind the MSA I signed. She did not mention anything about having to file a Petition, I may ask her or just get a new attorney to do that for me.

Good Afternoon,

Below, are the reasons (in order of importance) I am requesting to retract the agreement signed last Friday:


    1. I received an email yesterday stating that I am not eligible for housing allowance, which will effect the child support. The Child Support Worksheets submitted with the agreement on Friday, June 21st included the housing allowance which I am not eligible for. The reduction in pay will be around $3000 per month. Both Ms. Anderson and I received notification of this by email.

    2. Based on the over payment of housing allowance from last year I will be responsible to pay that amount back which amounts to $40, 000.

    3. Ms. Anderson filed paperwork to receive post allowance for herself in December 2011, which she did not advised me of at the time. I was unaware and continued to receive post allowance pay that included her, I am now responsible pay all of that amount back.

    4. The vehicles listed include the Volvo XC60 that I purchased alone after April 1, 2011. Ms. Anderson insists that it must be listed, but the debts section of the MSA state that all debts after April 1, 2011 are considered separate and the other party would not be held liable.

    5. In a previous draft of the MSA, Ms. Anderson listed the Volvo XC90 which she has since sold. This vehicle was purchased before April 1, 2011. The vehicle was omitted from the draft last Friday, June 21st. I am not sure if that is how these things are handled or not. Can you let me know which vehicle should be listed.

    6. The copy of the Marital Settlement Agreement is missing page 11, I will check again with the Notary to see if possibly they simply forgot to copy page 11, or whether page 11 was omitted from the MSA signed last Friday.

    7. Ms. Anderson did did not initial page 13 of the Marital Settlement Agreement. This is not a major issue, I am just bringing up any discrepancies that may help me to retract or cancel the agreement I signed last Friday.

    8. As you know I have been under tremendous stress and pressure to resolve this and felt pressure that if I did not sign the agreement that it would be held up again, Ms. Anderson originally filed in the summer of 2011.

    9. The email advising me of the housing allowance and Ms. Anderson's post allowance was sent to both parties, including both of our supervisors. I did not have access to my work email until yesterday, June 23rd. Ms. Anderson however was still working and would have had access to her work email and I assume was aware of the changes to my financial obligations and pay when we signed the agreement on June 21st.

Expert:  Samuel II replied 1 year ago.

Hello

 

Thank you for the additional information. If the Judge has not signed it, then request your attorney to file an Amendment or Modification to the MSA.

 

The problem it seems is that it might have to be redone from scratch. And in that case, if your spouse is not willing to cooperate and the Judge signs it then you will need the Petition

 

As this juncture, I suggest you call your attorney and tell them to have the MSA stopped - so that you can review it and amend it

Customer: replied 1 year ago.

Thank you very much for your clear advise. Do you recommendations apply for Florida?


 


Either way, I will look into both suggestions. Hopefully, my spouse will be willing to cooperate, although I am doubtful.


 


I appreciate your time and useful advice.

Expert:  Samuel II replied 1 year ago.

Hello

 

Yes, all suggestions are in regard to Florida law.

 

if you do not want to proceed with your attorney in this matter, then have them withdraw from the case and then write your wife's attorney a letter and state the problems and then that you want to have it amended or you will have to file a Petition to Set Aside.

 

That letter needs to be mailed certified with a return receipt so you can show the court you tried to settle and fix this out of court. That might give you a chance to recoup attorney's fees should you have to pay any for this.

 

Good luck

Customer: replied 1 year ago.

Firstly, thank you for your prompt and complete responses. I am completed exhausted from this process that began in July 2011.

 

I will follow your advice on modifying the MSA. How does that work, do out lawyer go and argue it out or do both lawyers present why it should or should not be modified?

 

The issue with Child Support is that we completed the Child Support Worksheets based on my spouse moving out of country and me have the children at least 22% of the time. I completed worksheets that also have Child Support worked out for the time she is still in the are and Time Share should be 50/50, so Child Support is greatly reduced. However, she only submitted the worksheets reflecting the Child Support based time share when she has them the majority of the time.

 

The MSA states, "The Husband shall tender the first child support payment directly to the Wife in the amounts outline above on or before July 1, 2013."

 

Does this mean, it will not be adjusted for the remainder of the time that she is in the area when time share is 50/50. She did not submit the worksheets with the 50/50 time share and we don't know if she will be here for 4 months or 16 months. She will not say.

 

Finally, the is a paragraph that states:

 

"The parties agree that the Wife will undertake new employment when she relocates from XXXXX with the minor children. Once the Wife is employed, the parties both agree to provide to one another with current earnings information, including verification of income, to facilitate the recalculation of child support given the changes in the respective earnings of the parties. This process will occur automatically and will not require additional or proceedings."

 

Does this recalculation only happen when she relocates and undertakes new employment? Or does this statement encompass the entire issue of Child support and it being recalculated as changes come up? My salary changed 5 days ago, with a reduction of $3000 (housing allowance), I am not eligible now. I am afraid she will fight this.

 

Thanks again,

 

Exhausted

 

Expert:  Samuel II replied 1 year ago.

Hello

 

I am sorry that you are feeling so exhausted from this process. It can take a toll.

1 - Yes, there will be a court hearing on this matter.

2 - I suggest once you file to set aside or amend she will have to provide another financial as will you and so it will be adjusted accordingly if the judge deems appropriate

3 - It appears the recalculation will occur once there is the relocation. However, you can have the order modified whenever there is a substantial change in financial circumstances

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