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#361140 - 03/06/08 03:08 PM set aside???--please help!!!
starstrucklver Offline
recently joined

Registered: 03/04/08
Posts: 9
my finace signed an outrageously unfair (in all legal opinions i've gotten) support agreement. 800 a month for 5 years for a marriage that lasted only 4 years 8 months and produced no children. he did this because he didn't know any better and didn't have access to representation (he was stationed in okinawa when she filed). we would like to have the judgment set aside, or at least the support order modified because we think she is co-habitating with someone but can't prove it and it may not be true. the judgment was only final on jan 4th. is set aside likely? or should we just do OSC for reduction in payments. it is my belief that he owes her NOTHING since she works full time and he is in the military. i'd be happy with a reduction so that she is out of our hair in 2 years, but hope for complete revocation to get her GONE!!! she calls his command and alleges that he is not paying just to get him in trouble. he has complied with every order.
some atty's say it is almost universally granted, others say that is is almost never granted. atty wants to do OSC, but i'd like set aside. any opinions about this? she was co-habitating when the judgment was finalized, but claims he was just a "roommate". how can we prove otherwise?

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#361141 - 03/06/08 03:55 PM Re: set aside???--please help!!! [Re: starstrucklver]
Cinder2 Offline
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Registered: 06/02/05
Posts: 4361
Loc: Southern California
What does the court order say specifically? Does it say the spousal support is modifiable, non-modifiable, or nothing? Does it say until she remarries, cohabitates, five years, or what?

Cinder

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#361142 - 03/06/08 04:32 PM Re: set aside???--please help!!! [Re: Cinder2]
starstrucklver Offline
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Registered: 03/04/08
Posts: 9
support is for 5 years, mariage was only 4 years 8 months long.
the order doesn't say "non-modifiable" and does not mention co-habitation. it is pretty basic. just says 800 a month by wage assignment with nothing about termination upon cohabitation or modifying it.
btw, if it matters, she took ALL of the household goods and he took about 80% of the debt.
should i just wait 5 years for her to go away or remarry or do we have a case to set it aside and re-negotiate a more fair and equitable settlement?
i'm just not sure which attorney's advice to take.


Edited by starstrucklver (03/06/08 05:21 PM)

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#361143 - 03/06/08 07:21 PM Re: set aside???--please help!!! [Re: starstrucklver]
Cinder2 Offline
Carpal \'Tunnel

Registered: 06/02/05
Posts: 4361
Loc: Southern California
You mention her remarrying, but does the court order mention that either? Can you type the exact sentence/paragraph? It doesn't matter anymore about how long they were married or what he/she got. All that matters is what the order says in exactly what language.

Cinder

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#361144 - 03/06/08 07:36 PM Re: set aside???--please help!!! [Re: Cinder2]
starstrucklver Offline
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Registered: 03/04/08
Posts: 9
"it is hereby stipulated between teh above-mentioned parties that:

...

spousal support
1. the respondent is ordered to pay the petitioner for her support the sum of 800 per month for spousal support payable on the 1st day of each month commencing september 1, 2007 and continuing until december 1, 2012

2. support payments ordered paid by wage assignment"

that's all. nothing else about support, termination or conditions of it.

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#361145 - 03/06/08 10:03 PM Re: set aside???--please help!!! [Re: starstrucklver]
Cinder2 Offline
Carpal \'Tunnel

Registered: 06/02/05
Posts: 4361
Loc: Southern California
Since it doesn't say the word "non-modifiable", you have a chance that you might be able to modify. Cohabitation or even remarriage are not going to stop this agreement that they made. One problem you're going to have is that he made this agreement less than six months ago, the divorce was final two months ago, and now he's going to say that it's unfair? That's probably not going to work.

Cinder

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#361146 - 03/06/08 11:54 PM Ok. he signed the agreement [Re: starstrucklver]
Melody Offline
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Registered: 06/03/04
Posts: 10102
Loc: California
unless he can prove he signed it under duress....I just can't think of how he can justify having it set aside. Just because he didn't have representation is not a valid reason. He made that choice and the court isn't going to accept that as a basis for setting aside something that he agreed to.

As far as terminating support due to cohabitation, first...that may not actually be a reason to terminate unless it is specifically stated in the agreement. You would also need to be able to prove it, and you've said you can't.

The problem I see here is that she works full time (you didn't say at what income level she works) and so does he (military)...so you are under the impression that she shouldn't have spousal support. However, you may not understand the reasoning behind the spousal support. It may have been designed to be compensatory...which is NOT based upon current need. It may be based on the disparity of their incomes. If he makes more, then regardless of how much TIME she works, the incomes are what is considered.

I'm thinking that the amount of money that would have to be spent to overturn this order is not worth what would be saved at this point. Especially when you consider that A) he has nothing to base his argument on (he agreed to the terms) and B) he can't prove cohabitation, which on its own is not necessarily a reason to terminate support. I think it would be a waste of time and money.

As for her calling his command to report non-payment...well, did he pay or didn't he? If he did, then he has nothing to worry about. If he didn't, then don't you think he ought to be following the court orders?

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#361147 - 03/06/08 11:59 PM The thing is [Re: starstrucklver]
Melody Offline
Carpal \'Tunnel

Registered: 06/03/04
Posts: 10102
Loc: California
regardless of whether or not it seems fair NOW, looking back on it...he AGREED to it. The time to fight about it was at the time of the divorce. He agreed to give her the household goods. He agreed to take on the debt. He agreed to pay support. He can't change his mind now. Once a divorce is final, you can't renegotiate the terms of the settlement (as far as assets and debts). The support COULD be modifiable, but there has to be valid reason for the request. Not wanting to pay it is not a valid reason for change.

It's a tough situation, but he should have been represented so that his interests were protected. He can't go back to court and ask for a redo just because he opted not to have an attorney....or he opted to sign the agreement. If you buy a car, house, or other large ticket item that involves a contract and payments...you can't just say you don't wanna pay it any more. You could refinance the terms of the loan to make it easier to pay, but you're still going to pay the full amount of the contract...just with different terms. It's kind of like that.

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#361148 - 03/07/08 12:01 AM I agree [Re: Cinder2]
Melody Offline
Carpal \'Tunnel

Registered: 06/03/04
Posts: 10102
Loc: California
I do believe it is modifiable, but not for the reasons she is citing....and especially not while it is so fresh. The ink is barely dry!

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#361149 - 03/07/08 04:40 AM Re: I agree [Re: Melody]
starstrucklver Offline
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Registered: 03/04/08
Posts: 9
he was and is paying. she is on alotment. she had no reason to call his command other than to harass him. she has staed that her goal was to see him kicked out of school.
when he signed it, it was under duress because she threatened to go to his command with allegations of adultry and ruin his command (it was internet [censored], and they really don't care so that is no longer an issue)support wasn't compensatory, it was punative. she wrote it and she did that to punish him. according to guidelines, he should be paying more like 100 a month for 2 years in a short term marriage. he couldn't seek representation because he was in okinawa when she filed and he couldn't seek a civilian lawyer. he didn't even know about the servicemember's protection act. he tried to go to JAG for advice, but they wouldn't talk to him because she had already gone to them and they said it was a conflict of interest. (they do not always have the servicemeber's interests at heart, if they had they wouldn't have talked to her)
she lied on her financial declaration and said that there were no other people in the household, however the person signing hte proof of service listed the same address as her when he signed it. had my finace known that she was living with another person, he never would have signed it.
oh yeah, and over the course of 5 plus years that he is paying her, it adds up to almost 50,000. that's more than he makes in an entire year. even if it costs him 5-10 thou to have it set aside or modified to be lower and for a shorter duration, he is still saving money. besides as long as she is being paid, she can take him back to court for more money to finance her trips to the desert with her bf. maybe i'm just baised because my dad's first wife screwed him with alimony and refused to work and even refused to marry her bf specifically because she wanted to sit on her ass and collect money. seeing his side of things, i could developed a deep hatred for women who milk the system like that.


Edited by starstrucklver (03/07/08 04:45 AM)

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