We have said it before, but the importance of carefully drafting and completely understanding your marital settlement agreement cannot be understated. Not only is the substance of each provision significant, the wording that is used can make a world of difference. For example, whether or not a certain provision is self-executing (meaning it takes effect automatically upon the occurrence of a certain act or event without the need for court intervention) depends entirely on how it is worded, as the case of Weidlein v. Weidlein demonstrates.
In the Weidlein case, the former couple’s settlement agreement provided that the ex-husband’s spousal support obligation would terminate forever if the ex-wife cohabitated with a man for one (1) week or more.
Years after the agreement was signed, the former wife sued the ex-husband for contempt, claiming that he owed her over twelve (12) years’ worth of alimony – which amounted to close to $450,000. In response, the ex-husband claimed that his support obligation terminated over 12 years ago, because the ex-wife had cohabitated with another man for more than a week (on multiple occasions). This allegation was corroborated by the testimony of the couple’s children. In other words, the ex-husband claimed that his duty to pay alimony terminated upon the ex-wife’s cohabitation according to the settlement agreement, and that this provision was self-executing.
However, the trial court disagreed, finding that the support termination provision was not self-executing and required a judicial determination before the ex-husband could stop paying. Unsatisfied with this decision, the former husband appealed.
First, the Virginia Court of Appeals had no trouble agreeing with the trial court’s decision that the provision at issue was not self-executing. The Court explained that self-executing clauses which terminate spousal support only exist where there can be no reasonable debate over whether the act or event triggering the termination did, in fact, occur. Examples include specific dates or times, or upon certain milestones such as a birthday or at death. Here, there could be reasonable debate (in theory) as to whether the former wife did, or did not cohabitate with another man for more than a week. Therefore, it was not self executing.
Second, the Court still determined that the former husband was not liable for the back spousal support because the ex-husband had proven that the ex-wife cohabitated with another man for more than a week. Though the provision was not self-executing (because there could be debate over whether or not it occurred), it also did not contain any language requiring the ex-husband to prove his former wife’s cohabitation by clear and convincing evidence, or any other standard of proof. This would have required the need to prove cohabitation in court before termination could occur. Because the ex-husband had shown that the ex-wife cohabitated, the Court found that her right to continue receiving alimony never vested after cohabitation. In other words, the Court concluded not that the former husband’s obligation terminated; rather, that the wife was never entitled to continued payments from the time she lived with another man for more than a week.
Although the alimony provision was not self-executing, it is nice to see that the Court found a way to enforce the spirit and intention of the parties when deciding this case. This case is an example of why you should always be careful and specific when drafting your marital settlement agreement, you may not be as lucky as the ex-husband was, in this case.
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.
Contact us today for a consultation at (888) 530-4374.