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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 7445
Experience:  Experienced Family Law Attorney
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I have been separated years. During that time an agreement

Customer Question

I have been separated for five years. During that time an agreement was drawn up mediated by a retired judge. I did have an attorney look at it but didn't pursue as he was only interested in taking it all the way to court. I did not sign the final, altered agreement, but did sign a document two years ago. It could have been an "intention to sign"; I'm not clear on that. I recently signed a form saying I was not using an attorney to do a final analysis of the completed agreement. The relationship between my ex and I is inexplicable . We have remained the best of friends, co-parenting our daughter. He was the only family I had left. His generosity continued after our split.
The marital standard of living was established . Because a significant portion of his income came once a year in the form of a bonus, 40% of my alimony was deferred to a once a year payment. He did guarantee the amount of the bonus for five years.
Yesterday, post surgery, for some reason I picked up the agreement and read it again. I discovered , to my shock and life altering dismay, that the bonus payment ceased in its entirety after five years ( which would be three years now). Neither the judge or my ex had ever spoken of this in any meeting or email nor was it written down in the copious notes the judge wrote down on a large presentation board and kept in the file.
We were married for 20 years (well 25 since we are not divorced). The marital standard was established. It is my understanding that alimony cannot be altered unless it is verified that his income has been reduced and he can no longer pay. The fact is that he is far more successful today then in 2010. He had the ability to depress his income and receive it in another way. He bought a 8,400 square foot home in Florida a year or so ago. My question is this: in a long term marriage where income/bonus had been well established and a marital standard of living agreed upon, how can my income be reduced 40% in advance after 5 years? Am I the unbelievably stupid victim of fraud or a very smart Jekell & Hyde? Believing in him has been the very core of my existence. I never even saw a tax return. This sounds so extremely outlandish but such was my faith and trust in him.
Submitted: 10 months ago.
Category: Family Law
Expert:  LegalGems replied 10 months ago.

I am sorry to hear of this.

First, it would be important to know what was signed. If it was a marital settlement agreement, the court will enforce what is agreed to so long as the parties were of sound mind, were not under duress, and the agreement was properly executed.

The agreement cannot be a result of undue influence (please see the Bond case, here: https://scholar.google.com/scholar_case?case=15970282768111903962&q=marital+settlement+agreement+unconscionable&hl=en&as_sdt=4,5)

In that case you will notice the court considers many issues, such as whether there is full disclosure of assets, undue influence, knowing waiver, etc.

The court also noted that for both premarital agreements and marital settlement agreements, the court may consider whether one had adequate legal counsel.

Please see section 4 of this case (https://scholar.google.com/scholar_case?case=9900217822238642137&q=marital+settlement+agreement+unconscionable&hl=en&as_sdt=4,5) regarding setting aside marital settlement agreements.

It is important to meet with an attorney as soon as possible to go over the terms of the agreement (and to determine exactly what was signed).

For example, typically the parties will exchange financial disclosures (ie FL150; property declarations) so that both parties are aware of what they are signing; failure to do so can result in the agreement being voided.

Lastly, a party may agree to waive spousal support, or may agree to termination at some future point, based on the ability to contract freely (this is not permitted with child support because a parent cannot "waive" or otherwise negotiate less than the statutory amount of child support, absent judicial approval; there is no similar statutory guideline or judicial approval required for spousal support).

A party may waive the required financial disclosure (http://www.courts.ca.gov/documents/fl144.pdf) but this needs to be clearly set forth in the settlement agreement. However, the family codes discourage waiver of financial disclosures and in some instances preclude this (see Family code 2100, 2104, 2105)

And with marital settlement agreements, basic contractual provisions apply (per Civil Code 1566-1579) so that one may void an agreement based on fraud, undue influence, etc. Furthermore, the Moore case, and the Olsen case, recognized that spouses owe each other a fiduciary duty (utmost good faith) that continues until the property division is effectuated, and that waivers of spousal support, especially for long term marriages (marriages longer than 10 years) require judicial scrutiny.

So as one can see, there are many concerns here and it is important to have an attorney review the agreement, and in particular review what type of disclosures were made and whether the fiduciary duty and basic contractual law was violated so that the agreement may be voided.

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Customer: replied 9 months ago.
I did view your answer and it was not at all helpful. You cited case law instead of describing the circumstances. I'm supposed to somehow
locate all these case laws and draw my own conclusions after reading them?I asked whether is was standard to reduce 40% of my alimony after five years without any indication to the court that my ex- husbands income had been reduced. In fact it's even more than it was. He purchased an 8600 square foot home the same year my alimony started. I believe he suppressed his income at the time we were crafting the settlement.
Expert:  LegalGems replied 9 months ago.

I'm sorry- I thought the answer was clear and I cited case law so that one could reference it during negotiations (that is typically very helpful as opposed to just stating one's request without legal authority).

Most contributors on this site will not include case law without offering it as an additional service (and expense).

It is not standard to reduce alimony 40% after 5 years without a decrease in income for the supporting party (or an increase in income for the supported party). However, there is no prohibition against doing so as the court does allow the parties to negotiate terms they deem appropriate.

Additionally, a settlement agreement can be voided if it is grossly unfair (unconscionable) or if there was not an adequate disclosure of income and assets (due to the fiduciary duty spouses owe one another).

Please let me know if this answered your question or if you would like further information. Thank you.