Husband fell behind on spousal support (alimony) payments and wife sought to have him held in contempt. Before the contempt hearing, the parties agreed to terms requiring husband to pay extra to catch up the arrearages. However, when husband later retired, he petitioned the court to terminate spousal support because he could no longer afford it. Wife sought to enforce the consent order that was entered by the court as a result of the contempt proceeding.

Trial Court Erred in Holding Post Divorce Consent Decree Amended Property Settlement Agreement Terms Relating to Alimony

Most divorce lawyers in the City of Richmond, Henrico County, Chesterfield County, and Henrico County, Virginia, encourage their clients to enter into agreements to resolve alimony or spousal support. Caution should e exercised though.

In April 2009, the Virginia Court of Appeals reversed a trial judge who held that a consent order entered into by the ex-spouses to cure an arrearage in spousal support by the husband constituted "an agreement" that bound the husband to pay.

The husband had sought to have spousal support terminated when he retired because he could no longer afford to pay it. The ability of a spouse to pay support is a "material change in circumstances" that will permit a court to reduce, increase, or terminate alimony. The issue in the case turned on one statute, Code section 20-109(C), which states:

"In suits for divorce, annulment and separate maintenance *** if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract. If such a stipulation or contract is filed after the entry of a final decree and if any party so moves, the court shall modify its decree to conform to such stipulation or contract."

As the first sentence of the subsection states, it only applies "[i]n suits for divorce, annulment and separate maintenance, and in proceedings arising under subdivision A 3 or subsection L of ยง 16.1-241...." Simply put, section 20-109(C) expressly limits the court's authority to modify an agreed upon spousal support award according to the terms of a stipulation or contract signed by the parties. A consent decree resolving a show cause petition does not constitute an agreement to modify spousal support, and therefore does not make the consent decree subject to the limitations imposed by section 20-109(C).


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