My Financial Settlement After a Divorce

Written by rob jennings
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My Financial Settlement After a Divorce
Provided you took care of wrapping up your financial settlement before divorce, you can enforce it afterward. (Jeffrey Hamilton/Digital Vision/Getty Images)

While state laws on marital property division and alimony vary, you must generally assert financial claims before the entry of a divorce decree (or cover them in a separation agreement) to avoid losing them. Provided you have resolved your property division and alimony claims before divorce, you can enforce your settlement later.

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Oral Separation Agreements

As a general rule, oral separation agreements aren't valid. This is because prior to your divorce you and your ex legally remain husband and wife, even if you've separated. At common law, which serves as the basis for the legal system of every state except for Louisiana, husbands and wives couldn't contract with each other because they were seen as one legal entity, so subsequent law that allows separation contracts must be strictly observed. Chances are your state won't enforce your settlement agreement unless you reduced it to writing. North Carolina even goes as far as to require notarization. If your state does allow oral separation agreements, the terms may be difficult to prove.

Marital Settlement Agreements

Properly executed marital settlement agreements are enforceable before and after divorce. If your ex fails to comply, your remedy is to sue him in court for breach of contract. Modification of a marital settlement agreement due to changed circumstances, except for the terms relating to child custody, is generally impossible due to common-law prohibitions against courts interfering with contracts. Despite this prohibition, courts can always modify child custody and can generally raise child support if they find the agreed-upon amount no longer meets the reasonable needs of the children.

Consent Orders

Consent orders accomplish much the same thing as marital settlement agreements, but if your ex fails to comply with a consent order you can take him back to court for contempt. Unlike enforcing a marital settlement agreement, you don't have to file a separate lawsuit for breach; a motion and calendar notice is generally all you'll need to get the ball rolling. As the contempt powers of the court include incarceration, you breach a consent order at your own peril. Unlike marital settlement agreements, consent order provisions on child support and alimony are generally modifiable upon a showing of substantially changed circumstances.

Bankruptcy Issues

Your ex's bankruptcy can throw a monkey wrench into post-divorce enforcement (actually, any enforcement) of your financial settlement, but there are some things he can't bankrupt away. Non-dischargeable items in both Chapter 7 and Chapter 13 include present, future and past-due child and spousal support. While he can wiggle out of liability for joint debts in Chapter 13, recent changes (as of 2011) to Chapter 7 make it generally impossible to bankrupt responsibility for joint debts in that chapter. Although the Chapter 7 debtor can eliminate his obligation to the creditors directly, he can't eliminate his responsibility to you for those debts.

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