Ratification and modification of Marital Settlement Agreement – published opinion from Ky Court of Appeals

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Husband and Wife entered into a Marital Settlement Agreement in North Carolina. Wife had an attorney. Husband did not have an attorney, but participated in the five drafts of the document. Both parties moved to Kentucky after Husband’s retirement from the military. Wife filed a motion to ratify the Separation Agreement. Husband requested the family court set aside the Separation Agreement as unconscionable and made various motions to modify. The family court ratified the Separation Agreement and denied Husband’s motion to set it aside or modify it with exception of custody and the parties’ parenting time schedule. Husband appealed on multiple grounds.

The Court of Appeals first addresses Husband’s argument that the family court erred by failing to find that “he entered into the Separation Agreement as a result of duress, fraud, and undue influence.” The Court of Appeals affirmed the family court, as the court did not abuse its discretion. It properly found Wife’s testimony more compelling than Husband’s and Husband participated in the drafting process. The Court of Appeals noted it was clear Husband’s motive in signing the agreement was for Wife to “shut up” and go away.

The Court of Appeals next addresses Husband’s argument that the Separation Agreement is unconscionable. The Court of Appeals again affirmed the family court. While Husband may have made a bad bargain, the agreement does not render him destitute. He agreed to pay maintenance and child support in excess of the guidelines, but the amounts were not “shocking to the conscious” or outside of his “reasonable fiscal means.” He understood the terms of the agreement and anticipated changes in his employment.

Finally, Husband argues that the court erred in denying his motion to modify maintenance and to deduct maintenance for tax purposes. The Court of Appeals found that the family court erred when it denied Husband’s motion to modify maintenance based upon Wife’s alleged cohabitation holding nothing in the Separation Agreement or in Kentucky jurisprudence prevent the court from exercising its authority on these matters. Thus, the Court of Appeals reversed and remanded.

Digested by Elizabeth M. Howell

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