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Haunted by a bad marital settlement agreement? Can it be set aside after divorce?

On Behalf of | Oct 26, 2021 | Alimony, Cohabitation, divorce, Property Division |

What generally happens with a marital settlement agreement (MSA) in a divorce is that the judge reviews it and incorporates its terms into the final divorce decree, if it complies with the law and is in the children’s best interests. So, while it was in essence a private contract between the divorcing parties, it also becomes part of a court order dissolving the marriage.

Some parts of an MSA – as contained in the divorce decree – can be modified in certain circumstances after the judge finalizes them as an order of the court in granting the divorce. It would be rare that the whole agreement would be somehow nullified after the divorce is final, but some provisions may be subject to later revision.

Alimony or spousal support

Florida statute says that when an alimony arrangement was created by a “voluntary property settlement” or required by court order,” a party may apply to the court to increase or decrease the payment amount when “the circumstances or the financial ability of either party changes.” The judge may amend the payment amount or confirm it based on fairness “with due regard to the changed circumstances or the financial ability of the parties.”

The court may also modify or terminate the spousal support obligation if the paying party can show the court that the recipient is living with someone else in a “permanent supportive relationship.”

Does it walk and talk like alimony?

Sometimes periodic or lump sum payments agreed to in a marital settlement agreement seem to masquerade as spousal support, but upon closer examination, they are actually part of the property settlement. Florida courts have said that in this situation, the payments are not modifiable.

For example, say a final divorce decree ordered that a spouse, based on a settlement agreement, make monthly payments to the other party of a set amount for 10 years. In this hypothetical situation, the parties may have negotiated that the payments were to make up for giving the payor the marital residence. The payments were meant to repay the recipient for equity and value they gave up when they let the other spouse have the entire financial interest in the house.

In this scenario, the payments would not be subject to modification because they are not alimony – even though they feel that way – but instead are part of the property settlement.

We will continue with this subject in future posts to explore other MSA provisions and whether they are modifiable.

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The Law Office of Forrest & Forrest, PLLC represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.

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