For The South Carolina Family Law Attorney – “Scenarios” To Read At Your Own Peril: Scenario No. 2

Last week I posted the first “scenario” in a blog series which I’ve entitled “Scenarios” To (Insure) You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril; and rather than my restating the “history” behind these “scenarios”, I would simply request that you read that last post … and I’ll press on.

Scenario No. 2

You represent the husband in a contentious divorce action resulting from an even more contentious, long-term marriage.  The litigation has been pending for some time now, and finally after engaging in several previous settlement conferences and a protracted mediation, progress has finally been made in the parties reaching a complete agreement.

Your client is an engineer who has been employed for a number of years by a well-known and hugely successful engineering firm, and he’s convinced that he’ll become a partner in this firm sometime in the future.  The husband has been the sole source of income for the family throughout this lengthy marriage.  The wife has been a homemaker.  The children are all now adults and living away from home. The wife’s attorney and you have been diligently working on drafting a detailed marital settlement agreement covering a variety of marital issues, including the division of extensive financial holdings acquired by the husband over the years of their marriage.

Your client, who feels he has made all the “financial concessions” he is going to make in arriving at this agreement, has agreed to pay the wife a substantial amount of permanent, periodic alimony.  Your client is (grudgingly) satisfied with the amount of alimony, but he wants your absolute assurance that his alimony payments cannot be increased by the wife or modified in the future no matter how much his income may increase … or “for any reason”.  You contact the wife’s attorney and insist that the agreement contain the following provisions which you’ve drafted to address the husband’s concerns:

“The husband and wife agree that the amount of alimony, and the terms of payment of alimony, set forth in this agreement can never be modified under any circumstances whatsoever – statutorily, legally, equitably or otherwise; known or unknown; anticipated or unanticipated – except by the express written consent of both parties.

Furthermore, notwithstanding that the parties agree to submit this agreement to the family court for the court’s approval, the agreement will be attached to the parties’ final divorce decree for enforcement purposes only under the court’s contempt powers; however, the agreement shall not become merged into the final divorce decree, and the parties expressly understand, acknowledge, and agree that at no time in the future may the court modify any term or condition contained in this agreement.

The wife and the wife’s attorney consent to this provision.

Within several months after the parties’ divorce is finalized, including the family court’s formal approval of the marital settlement agreement, the wife begins living with another man with whom, as the husband only discovered post-divorce, the wife was having a notorious affair prior to the parties’ separation.  The husband comes to your office enraged and wants you to file an action to terminate his alimony obligation to his ex-wife.  You believe you might have an “against public policy” argument, or perhaps a legal argument based on the wife’s having committed fraud by withholding knowledge of her affair (no depositions were taken in an effort to hold down the litigation costs).  You file the action.

Will you be successful with your new action … or do you have a professional liability problem for having insisted that the wife and her attorney agree to insert the “no merge – no modification” provision into the marital settlement agreement?

You’ll find this “fact pattern” to be remarkably similar to the one in the case of Maxwell v. Maxwell, 375 S.C. 182, 650 S.E.2d 680 (Ct.App.2007), and, while I would of course urge that you read the Maxwell case regarding this scenario, I also want to include in this post the following excerpt from that case:

“…the parties may enter a settlement agreement making the amount of alimony non-modifiable and not subject to subsequent modification by the family court. … While the family court normally has the authority to modify alimony, once an alimony agreement that specifically disallows modification is approved by the court and merged into a judicial order, it is binding on the parties and the court and is not subject to modification. … The family court ‘must enforce an unambiguous contract according to its terms regardless of its wisdom or folly, apparent unreasonableness, or the parties’ failure to guard their rights carefully’ “.

Good luck out there … and be very careful.