Can I modify a Marital Settlement Agreement

A separation agreement is a legal document that will bind you through many years and determine your rights, obligations, and responsibilities from your marriage. Generally, the court has no power to alter the terms of a valid contract and a separation agreement is a contract. However, you and your spouse can amend the agreement if you both consent to the changes. But can the court force a modification on the parties when only one party wants it?

The answer depends on which terms of the separation agreement are in question.  Property division terms are rarely modifiable. Child-support and child-custody terms, however are almost always modifiable according to the courts perception of the best interests of the child. How about alimony/maintenance? Well, if the separation agreement itself includes a provision allowing a court to modify its terms then the answer is yes. Also, the court will modify if the needy spouse has become so destitute that he or she will become a public charge unless a modification is ordered. If neither of the situations exists, the power of the court to modify and its ability to exercise this power involves two separate questions.

  1. Power to Modify:  the parties can specify in their separation agreement how they want the court to treat the agremeent in the judgement of divorce. If the parties decide that the agreement will be incorporate and merged  into the divorce the agreement loses it separate identity upon the decree of divorce and the question is not whether the separation agreement can be modified, but whether the divorce decree can be modified. Generally, courts are much less likely to modify their own decree than they are to modify the private contracts of parties. Under the merger doctrine, the contract no longer exists. However, if the parties elect to have the court incorporate but not merge the separation agreement in its decree, the court simply refers to the separation agreement in its decree and the separation agreement remains as an independent and non-modifiable contract.
  2. Exercising the power to modify: assuming the courts have the power to modify, when will it use those powers? Generally, Courts will exercise their power to modify where there is a showing of a substantial change in circumstances of a continuing nature that is not due to the voluntary action or inaction of the parties. Each case rest on its own facts and circumstances and the courts discretion.
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