Q: How do I modify a Marriage Settlement Agreement when the Divorce is not finalized.
My wife and I agreed to a "short version" marriage settlement agreement back in Dec. 2022. I get 5 days/week timesharing with our son, she gets 2. The child support was based on this timesharing plan.
Since Dec. 2022, she has not seen our son once and the divorce is not final. Yesterday her attorney emailed me and said he was preparing to set the final hearing and finalize the divorce. He asked me if I had any objections to the proposed final judgment of divorce, if I did not he would finalize the divorce and I would not have to show up to the hearing.
I told him I objected and would like to modify our MSA to reflect our current situation. After speaking with my wife he said she refused to modify and "it's a binding agreement and he will ask the court to enter a final judgment".
What are my options here? Should I just agree to finalizing the divorce and request modification afterwards? Thank you!
A: You would need to try and file a motion to set aside the agreement if you dont want to be bound by the agreement. The court would need to determine whether the agreement should be set aside or ratified.
A: Child support and timesharing are always modifiable until the children emancipate. You should keep a calendar and record every overnight that mom misses. You can use that as evidence when you seek to modify. You could also file the modification now. Your case is open, the agreement is binding, and she is not following the agreement. Speak with a local family lawyer for more specific advice.
1 user found this answer helpful
A: Additional facts are necessary to determine the feasibility of proceeding with the entry of the final judgment. Factors to consider include the new law, distance between the parties' residences, income of the parties, and whether there are facts indicating that even two overnights per week would be detrimental to the minor child's best interests. After evaluating the above, if you decide you do not wish to proceed with the Settlement Agreement, you could file a Motion to Set Aside the Settlement Agreement. I recommend consulting with a family law attorney to explore your options. Best of luck!
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