Re: Restatement of question regarding Virgina 20-109.1



"Bazzer" <barrywebb@xxxxxxxxx> wrote in message
news:424623e2-47d9-498c-be70-cbcb9c0932a2@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
On Nov 13, 6:58 pm, "McGyver" <Greyp...@xxxxxxxxxxx> wrote:
"Bazzer" <barryw...@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- Hide quoted text -

- Show quoted text -

Hi McGyver

Perhaps you mis-read one of my answers. You wrote:

a) the original agreement does not contain a provision permitting
subsequent changes to the agreement regarding support

My response was:
a. The PSA DOES contain a provision to modify support (caps added by
me)
and here it is:

You are right, I misread your post. If you are right, that the agreement
does contain a provision permitting modification of the agreement, then the
new law applies and your modification agreement does not require a court
order to make it enforceable.

(a) Periodic Support: Husband agrees to pay the sum of $xxxx.xx per
month in child support for the minor children of the parties. This
support shall begin on July 1, 2003 and shall continue on the first of
each month thereafter until September 1, 2004. The parties agree that
the Husband currently owes Wife arrearage of $xxxx.xx pursuant to the
Court?s pendente lite award, payable at the final accounting of the
parties and represents all funds of any description owed the Wife
pursuant to said decree. The parties agree that the accountant
performing the audit of their accounts shall be asked to review their
income figures from January 1, 2004 through June 30, 2004 and verify
the same. The figures so determined shall be used to extrapolate the
annual income.

You posted the wrong clause. The one above applies to the period between
July 1,2003 and September 1, 2004, and does not say that the parties may
agree to changes in the support level in the future. The clause you meant
to post is the one that authorizes the parties to agree on future changes.
I am not suggesting you post the applicable clause. I take your word for
it, that it exists. There is no need for you to post it.

This initial recalculation of child support was a consequence of a
change in the number of days visitation which was agreed in a separate
and earlier Custody & Visitation agreement. As you can see (and I am
including all relevant parts of the text from the PSA), there is no
requirement that any modification be approved by the Court.

You wrote:
That evidence counts when coupled with your ex's admission that a
change agreed to.
I'm not sure she will admit there was an agreed change.

I was referring to her admission in the two emails you described.

If she does,
the basis of her claim with DCSE pretty much evaporates. I'm really
not sure if she believes the modification to Child Support in
September 2004 was invalid because a. the change needed to be agreed
by the Court (a position which I hope is false) or b. there was no
agreement to modify (an outright lie). I think she'll adopt position
a.

You wrote:
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 thoughyour ex does not now agree to the change.

My understanding of the change to 20-109.1 was an Appeal Court
decision that allowed a claim for child support arreage simply because
the change was not entered by the Court even though, and I'm not 100%
of this, the PSA in this instance allowed for a recalculation of child
support and the recalculation was fair. To me, the change in the law
makes perfect sense. If 2 adults are capable of making a change to an
agreement that satisfies both parties then why should the Courts and
attorneys get involved. Either party still has the option of using the
courts to address any continuing grievance.

None of that has anything to do with my point, which was, that a change in
the agreement requires court approval unless the conditions of the new law
are met.

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


.

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