A Divorce Agreement With An Unusual Clause

I’ve previously written about child support payments changing after a divorce agreement is signed. And I tell my clients who ask me if their circumstances count, that unless it’s a case, G-d Forbid, of a surgeon losing an arm or a child who has been in a devastating accident there is no point in bringing suit. A “substantial change in circumstance” is a very high bar. According to the courts even the coronavirus emergency is not enough of a change to warrant an adjustment. But sometimes there is a divorce agreement with an unusual clause and sorting through the details is not a simple matter for a judge.

Brothers’ guarantee

In December of 2019, a husband and wife signed a divorce agreement. The couple decided to calculate the total projected amount of future child support the husband would be paying and to deduct that amount from his share of the value of the couple’s apartment. In short, he was to make a prepayment of child support.

This clause in the agreement between the couple was strengthened by the mother’s brothers agreeing to become guarantors. This obligated them to financially compensate the father in the event the mother sued him again for additional child support, and won.

Did anything really change?

Only a few months passed from the time the agreement was signed and certified before the wife returned to court and tried to sued for additional child support payments.

She claimed that the original amount they had agreed on was not covering the children’s living expenses. According to her, this was because of the ages of the children, the cost of caring for them and the fact that two of them had special needs. And it was compounded by the infrequency of time the father spent with them. She also insisted that she had signed the original agreement under duress.

The husband countered that the agreement encompassed numerous concessions on his part and the wife had not proven there was a “significant change of circumstances,” which would justify reviewing the case. At the same time he filed a notice of third-party liability against the woman’s brothers and demanded that they compensate him for any amount for which he may be obligated.

The judge asserted that the woman had not, as she had claimed, been under duress when signing the original agreement. And the change in circumstances didn’t meet the legal requirements needed to award a higher support payment.

On the hook

Her final ruling was that should the father be sued by the mother again, or should his children instigate actions which resulted in a judgement where he owed more than what he had already paid out (in accordance with the original agreement) the brothers would have to compensate the father for the new amount he was obligated to pay.

It was a poor decision to involve this woman’s brothers by having them written into the contract in the first place. With proper guidance there wouldn’t have been a need to drag them into the conflict by involving them in a divorce agreement with an unusual clause.