Divorce is a highly contentious ares of law. Divorcees are not as quick to turn toward private settlement negotiation to resolve their dispute. Once you sign your divorce agreement, or after a family court has issued a judgment, it can be difficult to change the terms of your divorce. BUT You have the legal right to file an appeal or a motion to modify to have a component of the agreement changed…
What Is A Divorce Settlement?
Under Kentucky revised statutes, the terms of a divorce settlement bind the court on matters other than child child custody, support and visitation. If a divorcing couple (and their attorneys) negotiates and resolves all issues related to their divorce, whether informally or through out-of-court processes like mediation or collaborative law, the couple’s decisions are finalized in detail in a written settlement agreement. This agreement is then shown to a judge. An informal hearing will usually follow, during which the judge will ask some basic factual questions, and whether each party understands and chose to voluntarily sign the agreement. As long as the judge is satisfied that the agreement was fairly negotiated, and the terms do not appear to blatantly favor one spouse over the other, the settlement agreement will almost always receive court approval.
The Court Won’t Enforce Unconscionable Terms
The court must respect the terms the parties agreed to after negotiating their divorce settlement, but the court will not enforce any unconscionable terms. According to Kentucky courts, unconscionable means “manifestly unfair or inequitable.” For instance… say an unrepresented party agreed to an unfairly low spousal support amount, or gave up an inordinate amount of property rights, because the other attorney improperly threatened the child support amount, those terms are probably unenforceable due to unconscionably.
How And When You Can Modify a Divorce Settlement
The process for modifying a divorce settlement terms, if spousal support and property division are not involved, are the same process as modifying any court decree. This is because courts essentially copy and paste the divorce settlement terms into their official decrees. According to Kentucky Revised Statutes, court orders for spousal support in property division can be changed “only upon showing of changed circumstances.” Kentucky courts apply this same standard to divorce settlements, holding that a separation agreement, which was originally determined not to be unconscionable, may later be modified if due to a change in circumstances the agreement has become unconscionable. For example… You can ask the court to make a change in the amount of spousal support you receive from your ex if he or she starts earning a higher level of income. Keep in mind, when you file your motion, you will also need to provide documentation to back up your request. Or if conditions agreed upon do not materialize for instance you agreed support payments would decrease form $1,400 to $800 after 24 months so the spouse could find a job. If the supported spouse became disabled because of an injury or medical condition before the 24 months elapsed, the court may modify the spousal support obligation so payments would only decrease to $900 or not decrease at all.
Again, it should be noted that if you and your ex both agreed to the settlement approved by the court, or after a divorce decree is made at trial, it can be extremely hard to change it. If you have questions relating to modifying or appealing your divorce settlement, definitely discuss them with your attorney before you take action.
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