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Kentucky Divorce Marital Settlement Agreement Enforcement

Today, I was reminded of the Kentucky Supreme Court Opinion in Pursley v. Pursley.  My morning and early afternoon were spent mediating an issue that came up in a Divorce Settlement Agreement from 2007 about the funding of higher education for children in joint custody.  Nine (9) years later, the parties’ expectations were not met by their reality.

In Pursley, the parties settled their case in 1991, including the issues of child support and spousal support (or maintenance or alimony).  They had two (2) children.  The Father agreed to pay pay “‘…30% of all of his income from his salary and bonuses as evidenced by his federal income tax return … as child support for the minor children of the parties'”.  Further, the

“…payments for the children would continue until such time as they turned eighteen (18) or graduated from college or graduate school, whichever was latest. He also agreed to pay the cost of undergraduate and graduate educations for the children at any school that they may choose in the United States. Additionally,  he agreed to maintain the children’s medical and health insurance and to pay any medical and dental expenses not paid by insurance. The Agreement also provided that [the Father] would pay 10% of his income as maintenance to [the Mother] for life, unless she remarried”

By 1999, it began to chafe the Father that the Agreement could require him to pay child support well into the adulthood of his children.  In Kentucky, your obligation to pay child support does go beyond the eighteenth birthday of your child (or nineteenth if they are still in high school).  However, you can agree to pay support or tuition for your children regardless of the minimum requires of the law.

The Father argued to the Court of Appeals (successfully) and Supreme Court (unsuccessfully) that his children’s endless pursuit of a diploma rendered the Agreement unconscionable.  In short, he argued that the post-Decree reality of support well beyond what he would ordinarily be required to do made the Agreement unenforceable.

The Supreme Court disagreed.  Basically, the Court stated that you are entitled to make a bad bargain.  What does this mean for you?  It means that you should take some time to think through the consequences of your Agreement before you sign it.  Just because you do not believe the unthinkable will occur does not mean it won’t.  Game out worst case scenarios with your lawyer.  That is what we are there for.

All that being said, Happy St. Patrick’s Day!

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