SEPARATION AGREEMENTS: Surviving v. Merged into the divorce

The typical separation agreement, or a stipulation of settlement resolving  a divorce should state whether the agreement is to survive the judgment of divorce as a separate contract, or whether it should be merged and incorporated into the judgment of divorce thus allowing for modification similar to a court order.  Which should you choose?

Where it Does Not Matter

Your decision will have no effect on the issue of custody and visitation because these issues can be modified until a child reaches the age of 18.  The court will base its decision upon whether there is a change of circumstances that render it in the child’s best interest to modify the custody and/or visitation provisions.

Your decision will also have no effect on the issue of  distribution of assets.  The Court will not modify the terms of distribution.

Where it Makes a Significant Difference

1)   Spousal Support/Maintenance – If you have stipulated in advance that your divorce agreement will be merged into the judgment of divorce, then the court can later modify the duration and amount of maintenance if circumstances are presented to warrant the raising or lowering of the amount.  However, if the divorce agreement survives the judgment, it is a contract that the court may not modify.

2)   Child Support – If the agreement on divorce merges into the judgment, then the court may modify  that support upward or downward when a change of circumstances may warrant modification.  On the other hand, if the agreement survives the judgment, then the standard for upward modification is an unforeseen and unanticipated change of circumstances that would warrant an increase in support.  However, a request for a downward modification in support is significantly harder to prove, and becomes something to think about when deciding whether or not to elect this option.

3)   Right to Sue – If the agreement survives as a separate contract, then even if the judgment is modified by the court, the other party can sue under contract law to  enforce the contract obligation and obtain a money judgment for what is owing and seek to collect it.  If, however, the agreement is merged and  the judgment is modified then  the payer cannot separately sue for enforcement of the contract.  Indeed, in this situation there is no separate surviving contract on which to sue.

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