When ending your marriage, you may enter into a property settlement agreement with your former spouse. This agreement will deal with issues of separating personal and marital assets, as well as child custody, child support and alimony. You must be extremely careful about what you agree to in this agreement, as the Virginia case of Everett v. Everett demonstrates.
In the Everett case, the divorcing couple entered into a property settlement agreement that contained the following stipulations:
“In recognition of the Children’s living expenses, including two private school tuitions, summer camps, work-related child care, transportation, insurances, in addition to food, clothing and housing, Husband agrees to pay Wife the sum of Five Thousand and 00/100 ($5,000) per month as and for child support commencing July 1, 2004, and continuing until each child graduates from college . . .”
“In the event that Husband ever seeks a downward adjustment in his child support obligations, Wife shall be entitled to pursue her marital share of Husband’s business interests and to pursue spousal support, both of which were waived to obtain child support beyond Virginia’s guidelines.”
The agreement also contained language that provided both parties would equally share the costs of their children’s undergraduate educations, which included tuition as well as housing. Moreover, the former couple agreed that if the husband ever sought to decrease his child support payment, he would have to pay for the former wife’s costs and attorney fees for answering the petition to modify support.
Of course, once the oldest child went to college, the former wife’s income increased and the youngest child received a scholarship for private school – so the former husband filed a motion to decrease the amount he had to pay in child support. And, you guessed it, the former wife answered with the property settlement agreement, highlighting the above provisions. Accordingly, the trial court ruled that the husband was obligated to pay the $5,000/month in child support until his youngest child graduated from college. Dissatisfied with this conclusion, the former husband appealed.
On appeal, the Virginia Court of Appeals made a number of conclusions. First, the Court stated that because the agreement required the former husband to pay child support to his oldest child through college graduation, even though the child was over the age of 18, this portion of the husband’s support obligation could not be modified because the settlement agreement contained no language permitting a modification in the future. Under Virginia law, a court is without power to award child support to a child over the age of 18, absent an agreement of the child’s parents. And, if such an agreement exists, the support obligation can only be modified if the agreement explicitly allows for it.
Second, the court determined that the husband’s support obligation with regard to the youngest (minor) child could be modified, because the court always has jurisdiction to change, modify and/or enforce its own order concerning the support and custody of minor children. The Court also decided that the $5,000 the former husband owed each moth could be apportioned amongst both children, because the settlement agreement did not specifically prohibit it, in fact, it contemplated that a modification may be sought in the future (albeit at the expense of the former husband).
The appellate court sent the case back to the trial court for a determination of how much support should be allocated to the youngest child, if this support obligation should be modified and if so, how much the former husband’s new payment should be. The Court also awarded the former wife her attorney’s fees for defending the petition in the trial court, as well as on appeal.
This case illustrates why it is so important to carefully draft your property settlement agreement and fully understand each and every provision. Here, the former husband could never modify his support obligation towards the oldest child, had to pay all of his former wife’s attorney’s fees, and faced the likely prospect of having to give her an equitable share of his business interest as well as alimony.
If you are in the process of drafting a marital or property settlement agreement, would like to enforce or modify an existing one, you need the help of a qualified family law and divorce attorney. Your lawyer can help develop provisions that protect your interests and attain the results you desire. The family lawyers of the DiPietro Family Law Group have decades of experience with all family law issues in jurisdictions across Northern Virginia, Maryland and Washington, DC.
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