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05/01/14 It's The Law Hard To Change Marital Settlement Agreement

It's The Law

Hard To Change Marital Settlement Agreement



I am getting divorced and recently signed a marital settlement agreement with my spouse. After I signed it, I thought about it and I'm not happy with what I signed. Can I change it?


A marital settlement agreement is a contract. Challenge to or effort to change such agreements are generally subject to contract law. Since it is a contract, the agreement can usually be changed by agreement of the parties. If no agreement, change can be difficult.

Florida courts have frequently noted that settlement agreements are highly favored in the law. That makes them even more difficult to change than a "regular" contract. Concluding you made a bad deal is not enough.

Since the settlement agreement is a contract, it must be challenged as a contract. Grounds which might allow successful challenge include mutual mistake. That means the parties agree to one thing but the written document does not accurately reflect that agreement. Unilateral mistake, where one party misunderstood or did not read, is not usually sufficient.

If the agreement was the product of fraud or coercion, it might be successfully challenged. That can be the case where one party is represented by an attorney and the other is not. It can also be the case where one party conceals assets and/or "bullies" the other into agreement.

If the agreement is vague or ambiguous, the court may admit testimony to clarify. But, there is no guarantee.

The areas where courts can most easily modify marital settlement agreements are child support and alimony. Section 61.14 Fla. Stat. provides courts with authority to modify, even when the parties have agreed on those issues. A good example of that type of court modification is the recent case of deLabry v. Sales.

In the Sales case, the parties agreed on an amount of child support to be paid by the former husband. The agreement was incorporated into the divorce judgment. About four years after the divorce, the former husband petitioned the court for child support reduction on basis of change in circumstances. Florida statutes provide for a modification of child support if there is a substantial change in circumstances of the parties. The substantial change alleged by husband was that wife had transformed from a stay at home parent to full-time employment as a lawyer plus substantial reduction in the former husband's income. The trial court ruled in favor of the former husband and the former wife appealed. The appellate court denied the appeal in a 2 to 1 decision.

The court noted that child support obligations under a marital settlement agreement are modifiable as a matter of law. Child support is a right of the child and cannot be contracted away by the parents. The courts have inherent authority to enter and modify support orders.

The court went on to confirm that the former husband's income had decreased by almost 50% from what it was at the time the settlement agreement was entered. The evidence met requirements for modification as it established:

(a) a substantial change in circumstances;

(b) a change that was not contemplated at the time of the final judgment; and

(c) was sufficient, material, involuntary and permanent.

The court also agreed that the modification should be made retroactive to the date circumstances changed, not merely to the date the petition was filed.

The dissenting judge pointed out that a substantial decrease in a parent's earnings does not always require reduction in support. The dissent felt that former husband had sufficient assets to pay child support at the original amount and that the trial court did not have sufficient evidence to find that the decrease in income was permanent. Since the amount of child support was carefully negotiated between the parties and because the former wife testified she gave up valuable property rights at the time of dissolution in part due to the child support agreement, the dissent thought the former wife should win.

Most aspects of a marital settlement agreement are almost impossible to change. That makes it important to retain an experienced attorney in divorce cases and especially when negotiating settlement. Child support and alimony are exceptions to the rule. But, because settlement agreements are highly favored, even changing support or alimony provisions can be tough. Good counsel in these cases is critical.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.