Divorce is a highly contentious area of law. Because the parties in a divorce usually have a long history together, litigation can get more personal than personal injury cases. As a result, divorcees are not as quick to turn toward private settlement negotiations to resolve their dispute. However, even a divorce settlement—also known as a “separation agreement”—does not put all divorce issues to bed once and for all. Under certain circumstances, the parties can change the terms of their divorce after the court issues a final decree.
Divorce Settlements in General
Under Kentucky Revised Statutes § 403.180(2), the terms of a divorce settlement bind the court on matters other than child custody, support, and visitation:
“In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.”
Simply put, the court must respect the terms the parties agreed to after negotiating their divorce settlement. However, the court will not enforce any “unconscionable” terms. According to Kentucky courts, “unconscionable” means “manifestly unfair or inequitable.”
For example, imagine that a couple entered into a private divorce settlement, but an attorney only represented one of them at the time. If the 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 unconscionability.
Modifying a Divorce Settlement’s Terms
For divorces that don’t involve settlement agreements, court decrees regarding spousal support and property division can be changed any time after being issued. The process for modifying a divorce settlement’s terms is fundamentally the same process for modifying court decrees. This is because courts essentially copy and paste the divorce settlement terms into their official decrees.
According to Kentucky Revised Statutes § 403.250, court orders for spousal support and property division can be changed “only upon showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” 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, imagine the parties agreed that monthly spousal support payments would decrease from $1,200 to $600 after 24 months because the supported spouse was likely to find a job within that time. If the supported spouse became disabled because of an injury or medical condition before 24 months elapsed, they might be able to modify the spousal support obligation so payments would only decrease to $900 or not decrease at all.
Need Legal Advice? Contact Louis P. Winner
Are you in the middle of an intense divorce? If so, you should consult an experienced attorney about issues regarding property division, spousal support, along with child custody and support. Attorney Louis P. Winner has experience litigating various divorce issues such as divorce settlements and modifications.
To schedule an appointment with Attorney Winner, call (502) 812-1889 or complete an online contact form today.