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Waiver of alimony or child support modification must be clear and express

The Supreme Court of Georgia recently reversed a trial court’s ruling that a Husband had waived his right to seek a modification of his child support obligation below a specified floor. Deanv. Dean, S11A0739 (2011). In that case, the parties’ settlement agreement provided a monthly child support amount, but stated that “Husband’s child support payment would be recalculated soon after the start of each year” and that “[i]n no event shall the annual recalculation of Husband’s child support result in him paying less” that the original amount stated in the settlement agreement. Id. at 1-2.

After the Husband lost his job, he filed a petition for downward modification of child support. Id. at 2. The trial court held that the Husband did not waive his right to modify his child support obligation, but the obligation could not be reduced below the floor set by the settlement agreement. Id.

The Husband appealed and the Supreme Court of Georgia agreed, emphasizing the “straightforward rule that parties to an alimony [or child support] 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.” Id. at 1, citing Varn v. Varn, 242 Ga. 309, 311 (1978). Here, there was no express mention of a “waiver,” nor is there any“express reference to the right of alimony modification.” Id. at 3-4. Not allowing the Husband to modify below a certain floor was essentially unlawfully limiting his right to modify.The Supreme Court of Georgia, thus, found that this case required reversal.

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