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Waiver of Right to Modify

Unlike child support, which cannot be validly waived by either parent as child support is a right that belongs to the minor child or children involved in the action, alimony may be waived by one or both parties to a divorce. Additionally, not only may an initial award of alimony be waived by either or both spouses, but also the right to modify alimony in the future may be waived by the parties to the divorce action. O.C.G.A. § 1-3-7.

Generally, waivers of alimony or waivers of the right to future alimony modifications, are included in settlement agreements or marital dissolution agreements entered into by the parties to the divorce. In order to be effective, however, any such waiver must be clear and expressly waive the right to alimony and/or waive the right to a future modification of alimony. Varn v. Varn, 242 Ga. 309 (1978). The Georgia Supreme Court opinion that is most often referred to regarding the waiver of alimony or alimony modification is Varn v. Varn. In Varn, the Georgia Supreme Court held the following:

“We therefore adopt the rule that parties to an alimony agreement may obtain modification unless the agreement expressly waives the right of modification by referring specifically to that right; the right to modification will be waived by agreement of the parties only in very clear waiver language which refers to the right of modification. This ruling will be applied to alimony agreements entered into after November 23, 1978 ….We do not intend to adopt any "magic words" test. However, we do intend in the future to avoid confusion in this area by adhering to a clear and express waiver test. ….”

Id.

An example of a clear and express clause both waiving the right to alimony as well as a future modification of alimony is set out below:

Husband and Wife agree that neither of them shall seek nor receive alimony from the other, either now or in the future, and Husband and Wife specifically waive their statutory right to future modifications, up or down, of alimony as provided herein, based upon a change in the income or financial status of either party. Both parties, in signing this Agreement, intend this to be a knowing, voluntary and express waiver of their statutory rights of modification of alimony, up or down, pursuant to O.C.G.A. § 19-6-19, or any and all future laws regarding alimony modification as may be enacted in this or any other state. In so doing, the parties are specifically relying upon the case of Varn v. Varn, 242 Ga. 309 (1978).

As the inclusion of a waiver such as the one set out above will permanently waive the right to either party to receive alimony or to seek a modification of alimony in the future, the inclusion of such a provision must be done only after both parties seriously contemplate this issue and reach a fully informed decision. 

 

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