Court orders are not considered modified unless and until the agreement is put in writing, approved by a judge and made a court order. In fact, most Separation Agreements include language that the terms of the Agreement cannot be modified unless “in writing and executed with the same formalities of the Agreement.”
What happens when parties fail to put the understanding in writing and make it a court order? The terms of the original Separation Agreement control and a significant child support arrearage can accrue.
A recent Connecticut Appellate Court case illustrates this point.
Facts: The father was ordered to pay $2,500 per month in child support pursuant to the terms of the Separation Agreement. The Agreement included language that the Agreement could not be modified unless in writing and executed with the same formalities of the Agreement. The parents verbally agreed to modify the Agreement. Thereafter, the father stopped paying child support but paid $478,000 toward private school tuition. Eventually a disagreement concerning payment for another child’s tuiton ensued. The mother then filed a Motion for Contempt based on the father’s failure to pay child support since 1998.
Ruling: The court found that the verbal understanding was ineffective to modify the child support order. The father was ordered to pay $225,000 in past due child support plus the mother’s attorney’s fees incurred in pursuing the enforcement action.
Rationale: The tuition payments did not lessen the obligation to pay child support. The court order for child support was not modified by a verbal understanding between the parties. The father should have made the verbal agreement a court order.
What to do?: File a Motion for Modification if there is an “understanding.” Then put the agreement in writing and request a judge to make it a court order.
Do not expect the court to honor an informal understanding.