As time passes, certain terms negotiated in a separation agreement may prove no longer applicable and require updating or revisions. An amending or subsequent separation agreement should incorporate the post separation changes to ensure ongoing relevance and flexibility in the application of the provisions.
Child Support Annual Income Review
Common post separation changes include meeting an obligation to pay monthly child support or to share in paying the ever-changing children’s expenses. To stay current with income streams from all sources, parents will annually exchange copies of their filed income tax returns. It gives each parent the information needed to review the amount paid for the benefit of the children, ensuring the appropriate amount is paid.
As the income of the paying parent rises or falls, adjustments are made to the monthly amount of child support, typically on a “go forward” basis. A sudden change in income may be seen as a “material change in circumstances” warranting an immediate review of all factors relating to the children’s needs and the parents’ incomes (see below).
Competing Child Support and Spousal Support Claims
To ensure that the welfare of the children comes first, the parties may negotiate that spousal support be paid at a later date. Once child support has been reduced or terminated, then an opportunity may arise for a former spouse in financial need to make a new request or seek an increase in the amount of spousal support being paid.
Material Change in Circumstances
A separation agreement will be based on the circumstances of the family just prior to or at the time the agreement was drafted. As difficult as it may have been, at the time of signing the document, families will have used their ‘crystal ball’ to predict the future financial strength of the family. Post separation changes are unpredictable and a common occurrence for many separated or divorced families:
- Change in the composition of the family
- Loss of a job due to illness or accident
- Reduction in the income available to a parent paying child support, due to severe fluctuating market conditions affecting a family business
- Substantial change in income up or down
- Relocation for employment
These unpredictable post separation changes may affect whether certain obligations negotiated in a signed separation agreement can in fact now be met. The obligations most affected by life changes are parenting arrangements and the paying of support.
Continuity of Your Lawyer’s Involvement
Develop a long-term relationship with your family law lawyer who understands your family history, the children’s special needs, and prior disputes. Negotiating post separation changes after being directly involved in the negotiation of the separation agreement or divorce will continue to have your best interests in mind.