Rhode Island Divorce Coaching on Child Support Modifications in Marital Settlement Agreements

Sitting in the Rhode Island Family Courts for many years I have seen Post Divorce issues arise. Few situations are more disturbing than what I call "the private child support modification."

If you've been reading this or any of my other Rhode Island divorce websites, you know that I usually explain by use of examples and analogous situations since nothing seems to teach more strongly than a good story. Since most of the compliments on my websites are the use of these stories, I won't diverge from that here.

* * Milton's Case of the Modified Child Support * *

It was difficult to sit in my seat as the judge rendered the decision. It was most certainly a decision that made Milton cringe as his ex-wife MaryLou laughed at him gleefully. Milton would not be able to stop the fact that his ex-wife had deceived him and would now reap extra money from him by putting their Rhode Island Child Support Modification as merely an amendment to their Marital Settlement Agreement.

Let's roll back a bit, as Rhode Island Child Support Lawyers do, I am getting ahead of myself again.

One particular day, quite a few years ago, I found myself in the Providence County Family Court typing away quietly on my Apple laptop computer as other cases proceeded. Typically I brought work with me to maximize my time for all my divorce and family law clients while I waited for my client's case to be heard. Today I was waiting for my client's case to be called for a pre-trial conference.

When Milton's case was called, I intended to continue the work for my clients but found myself unable to. Milton's case caught my attention in the background and I put my work aside to listen. It went something like this.

Milton and his wife Mary were married for 12 years and had two young children. Their Final Judgment of Divorce was entered about five (5) years ago. Mary received placement of the two children. At the time of their divorce, Milton was making good money as an engineer of some sort. The Marital Settlement Agreement between Mary and Milton provided that he would pay about $780 per week to Mary by garnishment through his employer for his weekly child support obligation for their two children. This was a total of $3,354 per month.

Mary was also self-employed and the amount Milton agreed to pay was based upon the amount provided by the Rhode Island Child Support Guidelines based upon the sworn and notarized financial statements of Milton and Mary filed with the court on the day of their divorce hearing as well as the Rhode Island Child Support Guideline Worksheet submitted to and approved by the court and both parties' family court attorneys on the divorce hearing date.

The Marital Settlement Agreement provided that the "Agreement could be modified by the signed agreement of both parties in writing and filed with the court." About 31 months (2 years and 7 months) after their Final Judgment of Divorce entered in the Providence Family Court, Milton was struck by a car and suffered substantial permanent physical damage as well as a brain injury which prevented him from performing his work with the efficiency he had been able to achieve in the past. Milton was laid off. Milton was forced to be conservative with any monies he received from unemployment and he applied for disability and was turned down in the first instance and appealed.

Milton approached Mary who was very understanding about the situation. In fact, Mary had her own attorney prepare a modification of Milton's child support from the $780 per week in their Marital Settlement Agreement down to $295.00 per week so that Milton could survive. Mary and Milton both signed and notarized the Amendment to their Marital Settlement Agreement and it was filed with the Providence County Family Court and Attached to their Original Marital Settlement Agreement.

The $295.00 per week for Milton's New Rhode Island Child Support as agreed to with Mary was garnished from Milton's Unemployment Check each week as Milton continued to diligently seek work.

It was not until this time when Mary wanted to send one of their children to a private school that meant a lot to her that she became upset. Mary asked Milton to pay for 1/2 of the private school tuition even though she knew that Milton was on unemployment and his finances were tight.

Milton explained that it was financially impossible for him to make the contribution Mary wanted as much as he wanted to do it for his daughter. Mary became angry and consulted her lawyer and filed a Motion for Willful Contempt against Milton for not paying the required child support of $780 per month as originally stated in the Marital Settlement Agreement and the parties' Final Judgment of Divorce.

Milton tried to talk to Mary but she merely demanded that he pay for 1/2 of the cost for their daughter to go to the private school she wanted or she was taking him back to court.

Milton consulted his lawyer who immediately filed a Motion to Modify Child Support. Milton's Rhode Island Divorce Lawyer explained to Milton that the Rhode Island Family Court Judge only had the power to modify the child support retroactive to the date that the motion was filed. Milton didn't understand why Mary's agreement with him did not change the child support.

Milton's family law lawyer explained to him that even though the amendment may have modified the Marital Settlement Agreement Contract between the two of them, it did nothing to change the fact that the Judge had ordered Milton to pay $780 per week.

Milton discovered that it was his burden to show that he had paid the $780 per week as the judge had ordered. Milton learned that if he couldn't pay that amount of child support based upon his income and the changed circumstances that he was obligated to return to the court and file a Motion to Modify Child Support and ask the court to reduce his obligation based upon the circumstances.

Milton found this to be tremendously unfair. Mary had proposed the change to the Marital Settlement Agreement and Milton felt that he had followed everything he needed to do.

Milton felt it was completely unfair for Mary to wait all this time and then use the child support stated in the Final Judgment to blackmail him into paying for 1/2 of a private school that they both knew he couldn't afford. Milton was angry to say the least. Milton took what little money he had and borrowed money from a family member to pay the attorney to defend him.

As much as the family law attorney explained to Milton that the court's order in the Final Judgment of Divorce trumped any part of the Marital Settlement Agreement, it didn't seem fundamentally fair to Milton. Milton instructed his Rhode Island Family law attorney to oppose the Motion to Adjudge Him in Willful Contempt.

Testimony was heard from Milton and from Mary. Mary's position was simple, namely that Milton had not obtained a court order modifying his child support and had intentionally paid only $295 per week instead of the $780 he was ordered to pay, therefore he was in contempt of court. Milton testified about his accident, his loss of job, his belated Motion to Modify Child Support and his wife's proposal to amend the Marital Settlement Agreement and their proper execution of the amendment to make it lawfully binding. Milton's attorney argued that it was unreasonable for Mary to enter into an agreement with Milton and then reneg on that agreement and not only allege willful contempt but also to ask for 12% interest per annum as allowed by law on the unpaid portion compounded monthly.

Regrettably Milton left the court very upset and very angry. The judge's calendar was full that day and without hesitation the judge rendered the decision that Milton knew the court order required the payment of $780 per week and didn't pay it and therefore was in willful contempt of the court's child support order as contained in the Court's Final Judgment of Divorce. The court allowed the 12% interest to Mary compounded monthly to the current date.

The total the Rhode Island Divorce/Family Court ordered Milton to pay was outrageous when balanced against Mary's actions and Milton's actual financial resources. Though the court did modify the weekly child support down to roughly $215 per week for his current child support, the court ordered that the 12% interest would continue to accrue with an additional $200 to be paid each week toward the outstanding arrearage created by not paying the difference between the $780 and the $295 per week that was due after 1 year and 5 months. The court also ordered Milton to pay $2,000 toward Mary's attorney's fees.

Milton plead with the court to make his reduction retroactive to the date of his accident or at least the date he signed the agreement with Mary. The court explained that Rhode Island law allows the judge discretion only to allow a retroactive modification of child support to the date the Motion to Modify is filed. Based upon the current law, the court's hands were tied.

MILTON'S CRUCIAL LESSON: Child Support must be modified by a Motion to Modify before the court. The Court's power to grant a retroactive reduction of child support is discretionary by the judge and is limited to the date you filed your Motion to Modify Child Support. Do NOT rely on trust and a private agreement with the other parent regarding child support.

Private contracts and agreements between the parents are essentially worthless when compared to a provision contained in an order, decision or Final Judgment of the Rhode Island Family Court. A provision contained in an order, decision or Final Judgment of the Rhode Island Family Court is the controlling factor.

Do not rely on any private agreement, settlement agreement or other document that is privately agreed to by the parties if their is a provision in an Order, Decision or Judgment made by the Rhode Island Divorce/Family Court . . . any provision in an order, decision or judgment on the same subject that is also contained in a private agreement in a matter is the controlling provision! What the court says trumps anything agreed to by the parties on the same subject.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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Copyright 2009. Christopher A. Pearsall, Esquire
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