Is my separation agreement modifiable?

Posted on Feb 5, 2020 by Katie Carter

We talked on Monday about two of the big problems associated with finding a form separation agreement on the internet.

There are all sorts of issues you can run into in family law cases, and, in an ideal world, you’d be informed about exactly what they are and what you can expect. A good way to do that, at least at the outset, is by attending one of our monthly divorce seminars or requesting a copy of our free divorce and custody books.

After all, knowledge is power, and the law is constantly in a state of flux. In fact, each year there are new changes made, and you’ll want to keep abreast of them as you work your way towards divorce.

One of the biggest issues in divorce and custody cases is modifiability. Specifically, what, in a divorce, is modifiable? How is it modified?

Modifiability is frustrating because it is a way of bringing previously determined issues back to the forefront. I wouldn’t wish to seem dramatic, but modifiability is where, in my opinion, a lot of abuse comes into the picture, so it’s important to know ahead of time what issues are modifiable, under what conditions, and how to avoid or minimize the modifications arising so that your ex-husband doesn’t get to call the shots (or, at least, if you can’t avoid it, you can minimize the disruption to yourself and your children).

How is modifiability abusive?

Abuse takes many forms, and one of those forms is repeated or unnecessary litigation, especially when one spouse is a considerably lesser earner than the other. The higher earning spouse is empowered to think that he or she can outspend the other when it comes to litigation, and so takes repeated steps to keep the case in court. The hope is that they’ll get their way simply by harassment. It’s a frustrating thing to see, especially because there’s often very little anyone can do about it. For issues where the law allows modification under certain circumstances, if those circumstances are met, then… he can bring his petition.

What issues are modifiable in a divorce?

The best thing you can do to avoid issues with modification is to be aware which issues are subject to modification, and draft your agreement accordingly. Sure, you may not be worried about modification today – you just want to get a separation agreement in place, period – but you’d be well served to at least think about these things in the drafting.

Most equitable distribution issues (that is, the way property and assets are divided in divorce) are final and not modifiable. The main theory there is that you are only entitled to the benefit of what was earned during the marriage, and that’s a static thing. It’s not changing. You have what you had when you separated, and you divide those things in divorce. Unless something is reserved for later determination, we don’t go back to court over these issues.

What if an agreement was signed under duress? Is it modifiable then?

No. Almost certainly, no. Agreements are not modified just because one party regrets it later. In order for an agreement to be overturned, it’s really very difficult (not to mention tremendously expensive).

Duress alone is not enough. And, really, I’m not entirely sure most people know what duress is. It’s really extremely severe; basically, that he was holding a gun to your head and threatening to kill both you and your children if you didn’t sign right this instant. Not only that, but duress alone isn’t enough. You’ll have to show that the agreement is unconscionable; that is, the agreement is SO BAD that no reasonable person would ever have signed.

If you receive any benefit from the agreement, it is almost certainly not unconscionable. Why? Because, whatever that thing is, however small it might seem to you, it could have been a bargained-for benefit. It could have been so important to you that you were willing to give up other things in order to get it. Is it a good bargain? That doesn’t really matter to the court.

So, in general, we don’t overturn agreements – though if you have specific questions about yours and would like to consult with an attorney, we certainly encourage you to do so.

Spousal Support

The law regarding spousal support recently changed. And, anyway, under certain circumstances, spousal support has been modifiable, anyway. It’s one of the exceptions to the previous discussion on equitable distribution.

Spousal support has always been terminable (which is a kind of modification) under certain circumstances: if either of you dies, if the recipient spouse remarries, or if the recipient spouse cohabitates in a relationship analogous to marriage for a period of one (1) year or more.

Now, though, it can also be modifiable under different circumstances. The specific circumstances will, I think, depend on the wording of the court order or the separation agreement granting you spousal support, but, in general, support entered into by agreement of the parties is modifiable based on a material change in circumstances. We’re also required now to specifically mention whether the retirement of the payor spouse is included in the analysis, and, if so, what impact that retirement might have on the award of spousal support. For support entered by a court order, the order itself would govern.

There’s much, much more modifiability now than there used to be, and a person’s changes in circumstances are relevant.

That means that women can find themselves in court, facing spousal support issues, for all sorts of reasons. If he’s demoted or fired from his job, for example, he can petition for a modification. If he loses his job due to his own bad act, we can mount a defense based on that – but, as you can probably guess, that’d be expensive. Not to mention that, without a lot more information, I can’t give you any advice on your likelihood of success.

He can also mount arguments about whether or not you’re living with someone, and whether that amounts to cohabitation. That can definitely be abusive, frustrating, and never-ending, which can ultimately impact your ability to defend against this kind of suit.
If you’re concerned about the modification of your spousal support award, talk to your attorney about any options for combating this, and how to try to get an agreement in place that protects you as much as possible.

Child Custody, Visitation, and Child Support

Anything related to the children is also modifiable based on a material change. Why? Well, because custody and visitation is based on the “best interests of the child” standard, and, by its very nature, what’s in a child’s best interests is something that’s changing over time.

What might be appropriate for a breastfeeding baby, after all, is not necessarily the same thing as what’s best for a kindergartener or a middle schooler or a high schooler who can drive. Things change, and custody, visitation, and child support have to change with them.
All sorts of things impact a child’s best interests, and the court will often entertain petitions to re-hear these issues, based on a material change (which is construed broadly as anything having an impact on the children), as long as it has been 6 months to a year since the last modification.

Is that a lot? Well, yeah, it can be! Especially if your kids are young, and your child’s father is unhappy with the custody and visitation arrangement, he can petition the court every year or so until your children turn 18.

It’s frustrating, it can be abusive, and the expense can really add up. Not to mention, modifications are determined in juvenile court after a divorce decree is entered, and then anything that happens at the juvenile court level is automatically appealable to circuit court. So, you can wind up with two trials on just one modification petition!

Its definitely a good idea to be as familiar as possible with Virginia custody law. Consider requesting a free copy of our custody book or attending or Custody Bootcamp for Moms seminar to prepare yourself for what’s to come. Already a Hofheimer client? You can attend Custody Bootcamp for free; just call our office to register.

For more information, to schedule an appointment, or to request more of our free resources, give our office a call at 757-425-5200.