Re: Restatement of question regarding Virgina 20-109.1

"Bazzer" <barrywebb@xxxxxxxxx> wrote in message
news:4dee696f-1866-4b21-87e1-e69f135de912@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
On Nov 13, 9:11 am, "McGyver" <Greyp...@xxxxxxxxxxx> wrote:
"Bazzer" <barryw...@xxxxxxxxx> wrote in message

news:e6b06e90-9007-46f6-82e9-1f1c3ea842f3@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

A group member suggested I state my actual circumstances. So, here
goes:

1. My ex and I signed a Property Separation Agreement (PSA) in June
2003. There was no court reporter present during this process.

2. The agreement was executed by the court in February 2004

3. Part of the agreement specified an annual review of child support
based upon changing circumstances.

4. The PSA did not specify any subsequent change to child support be
executed by the court

5. In September 2004, due to a change in visitation, we reached
agreement to reduce child support.

6. From that day forward, I have paid this revised amount. I never any
communication from my ex that I was paying the incorrect amount.

7. Although there was no specific written agreement, I have
documentation from my ex where she refers to the agreement for the
revised amount of child support.

8. She has recently made a claim to DCSE that I owe her for back child
support on the basis of the original support figure. She has
conveniently forgotten about our agreement to revise amount in
September 2004.

9. Virginia 20-109.1 was signed into law in March 2003 but not
included in the statutes until July 1st, 2003.

10. It would appear that the amendment to 20-109.1 would protect me
from the claim of child support arrearage providing it applies in this
instance. The text of the new statute does not appear to reference
existing PSAs dated before July 1st, 2003 or does it? Is this
amendment considered to be retroactive to a PSA dated before July 1st,
2003?

11. What is the critical date with respect to the PSA? Is it the date
of the agreement even though it was not officially recorded at the
time (June 2003)? Or is it the date the PSA was executed that is all
important (February 2004)?

This is Virginia 20-109.1:
https://leg1.state.va.us/cgi-bin/legp504.exe?031+ful+CHAP0260+pdf

Any help would be very much appreciated.
Thanks
Barry

The new law helps, but doesn't address the basic problem. The new law
provides that if you agree on a change to your child support agreement,
the
change is enforceable without a new court decree if such change was
authorized by the first agreement and the first decree. The new law
applies
to past agreements as well as future.

But the new law doesn't make your modification valid if:
(a) the original agreement does not contain a provision permitting
subsequent changes to the agreement regarding support,
(b) the original agreement contains a provision saying that any change in
to
the agreement must be in writing,
(c) you cannot prove that there was a modification, or
(d) you cannot prove the exact contents of that modification.

You indicate that your ex wrote something indicating that there was a
modification. That satisfied item (c), but you have not provided us any
facts concerning (a), (b) or (d).

Here is a copy of the new law, with large chunks removed so that the
remaining part becomes clear:

"Any court may affirm, ratify and incorporate by reference in its decree
...
any valid agreement
between the parties, ...Provisions in such agreements for the
modification
of child support shall be valid and enforceable. Unless otherwise
provided
for in such agreement or decree ... such future modifications shall not
require a subsequent court decree. ... The provisions of this section
shall
apply to any decree hereinbefore or hereinafter entered"

This answer must not be relied on as legal advice for the reasons posted
here: http://mcgyverdisclaimer.blogspot.com. And I am not your attorney.

McGyver- Hide quoted text -

- Show quoted text -

Hi McGyver..

I appreciate that any advise is informational only.

To answer your points:

a. The PSA does contain a provision to modify support

Therefore the new law is no help, The new law says that a new court decree
is not required if the original agreement contained a provision regarding
future modifications. Since that does not apply in your case, the new law
doesn't apply.

b. The PSA has no requirement that any agreement to modify support be
in writing and by inference, presented to the Court

That would have been helpful if item (a) had been satisfied.

c. My "proof" is the acceptance of multiple checks for the
renegotiated amount without complaint from 2004 (the year of the
renegotiation) until 2008 plus documentation from my ex that includes
the following passages of text:

That evidence counts when coupled with your ex's admission that a change
agreed to.

"Let me know what you found out from xxxxxxxx in terms of making
record of our agreed child support figure for the coming year."

And

"...now that we have agreed an amount for this coming year. "

Those writings count when coupled with the checks establishing the new
amount.

Therefore, you should be able to prove that a change was agreed.

Although the 1st quoted text does make mention of "...making a
record...", as I said in b. above, the PSA does not include any
requirement of such a record. I can't recall the nature of any
requirement to make a record of the agreement to modify, but I would
hope that the conditions of the PSA would apply rather than any verbal
requirement to the contrary.

d. Well, this is the law we are talking about here. What does exact
mean? I have my own memory, documentation from my ex that strongly
supports my claim of an agreement on the only thing that could have
been agreed upon within the terms of the PSA i.e. child support and my
ex receiving checks for the amended amount from 2004 until 2008
without complaint to me or any suitable authority i.e. the Court or
the DCSE.

Your testimony from memory counts as evidence. When coupled with the checks
and the writings of your ex concerning the new agreement, you should be able
to prove that a change was agreed to. But that doesn't make the change
enforceable. The problem is that there must have been some reason that the
new law was thought to be necessary. The new law makes modifications which
comply with the new law enforceable. That implies that such modifications
were not previously enforceable without a new court order. I suppose the
reasoning is that the parties don't have the right to change a court order.
Therefore, you need a new court order to make the change enforceable. That
might be a simple matter of proving to the judge that the change was agreed.
But it might not be that easy. You may need to convince the judge that the
new amount should be imposed by court order because it is fair even though
your ex does not now agree to the change.

This answer must not be relied on as legal advice for the reasons posted
here: http://mcgyverdisclaimer.blogspot.com . And I am not your attorney.

McGyver


.

Relevant Pages

  • QUESTION BEGGING (was: Restatement .of question regarding Virgina 20-109.1)
    ... that the above includes all the child support related provisions of ... the said agreement and judgment, and that neither that agreement nor ... by a court to be effective. ... He claims that he and his former wife agreed effecctive Sept. 2004 to ...
    (misc.legal)
  • No limit on proving paternity
    ... The Ohio Supreme Court upheld a state law Wednesday that gives men ... men had one year to challenge support orders with DNA. ... Thousands of the 685,000 child support orders in Ohio could be ...
    (soc.men)
  • Re: Buying a new copy of XP
    ... It does not need to have any court's approval to be a legal and binding agreement. ... Sue Microsoft for an invalid agreement that gives a false impression of your actual rights or that limits it in a way that is not legal or whatever your actual case would be. ... eula and try to prove it is a binding contract in a court of law. ...
    (microsoft.public.windowsxp.general)
  • Re: Restatement of question regarding Virgina 20-109.1
    ... There was no court reporter present during this process. ... agreement to reduce child support. ... Therefore the new law is no help,  The new law says that a new court decree ...
    (misc.legal)
  • Re: Restatement of question regarding Virgina 20-109.1
    ... There was no court reporter present during this process. ... agreement to reduce child support. ... Therefore the new law is no help, The new law says that a new court ...
    (misc.legal)