When it Comes to Separation Agreements, How Doing it Yourself Can Cost You Thousands

By Daniel Miller

In my domestic practice, I have seen people get in trouble when they try to get by without an attorney. I want to discuss one particular situation as a warning to those who may be thinking about saving a little cost by resolving a legal issue themselves.

First, the facts:  A husband and wife were separating. The husband was making good money, and the parties agreed that he would pay his spouse $2000 in Spousal Support. It was an amicable split and they were getting along. The husband hired an attorney to draft a Separation Agreement which, among other things, indicated he would pay her $2000 per month in support for a period of ten years. It was signed by both of them, notarized, and copies were made.  A short time later, after the divorce, the husband’s job was changed and he lost a good part of his salary.  Since the two of them were getting along and were still friends, the wife agreed that she would accept $1500 per month instead of the agreed amount of $2000. The husband  decided that he  did not want to spend more money having an attorney draft an Addendum.  Instead, he took a sheet of legal paper and, with a pen, wrote, “ The Husband and Wife agree that the spousal support paragraph in the previous Separation Agreement will be modified and that the Husband will pay to Wife $1500 per month due to his reduction in income.” They both signed the bottom of the paper and the husband began to pay the wife the reduced amount. This went on for 15 months, until they had a fight. The husband woke up one day to see a motion on his front door from an attorney representing the wife.  He was being sued for $7500, $500 per month for the 15 months.

The original Separation Agreement that had been drafted by an attorney had a standard Paragraph which is found in nearly all professional Separation Agreements, called “Changing the Agreement” which read:
“It is the intention and agreement of the parties that no change of any provision of this Agreement shall be effected in any manner whatsoever, except by subsequent written agreement of the parties, executed with the same formality and in the same manner as the execution of this Agreement.”

In court, the husband pointed out that the wife agreed to the change and that she signed the paper he had written up. The wife did not contest these facts. She admitted it was her signature.  But the Court said that did not matter.

In ordering the husband to pay the wife $7500 in arrears, plus $1500 for the wife’s attorneys fees and $200 for her time off work to come to court, he pointed out that the above paragraph in the original agreement meant that the parties cannot change the terms of the agreement except in a similar typed and notarized agreement. It makes no difference that the wife agreed to and signed the second agreement. It was not done with the same formality.

Had the husband, 15 months earlier, consulted with an attorney to change the spousal support figure, the attorney would have advised him about the requirements to change the agreement and would have drafted a proper addendum for $200.

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