N.B. The holding of Floyd v. Morganthat it took a higher burden of proof to modify support agreement was subsequently overruled in the case of Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011)
With today’s advance sheet, the Supreme Court’s opinion in Floyd v. Morgan, 383 S.C. 469, 681 S.E.2d 570 (2009) becomes final, as the Supreme Court rejected Ms. Floyd’s motion for rehearing on August 20, 2009. Both past and future child support agreement are now going to be much harder to modify. It’s likely that, using Floyd’s rationale, alimony agreements are now going to be harder to modify too. It’s possible that, again using Floyd’s rationale, child custody and visitation agreements will even become harder to modify. Basically until the Supreme Court orders otherwise, it’s safest to assume that any agreement approved by the family court that is subject to subsequent modification is going to be subject to very close scrutiny and a very high burden before the family court modifies it.
As noted in a previous blog, I thought Floyd v. Morgan was an extremely misguided decision. The past month I have spent considerable time thinking about how to handle agreements in light of this decision and the best idea I have come up with is: 1) make sure to list within the agreement every conceivable thing that the parties agree is a substantial change of circumstance giving rise to a subsequent modification; 2) make sure this list is described as partial and not an exclusive listing of all possible changes of circumstance; 3) hope (pray?) that you didn’t forget some obvious circumstance that your client might have considered would allow support to be modified.