DIVORCE AGREEMENTS,SHOULD THEY SURVIVE OR MERGE?
By Sari M. Friedman, Legal Counsel
FRANY and FRALI
Should your divorce agreement survive the judgment of divorce? Or should
it be merged into the judgment of divorce? And does it really matter?
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 equitable distribution
of assets. The Court will not modify the terms of equitable distribution.
Where it Makes a Significant Difference
- 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. The one exception to lengthen or increase the
amount would be if the receiving spouse were to become a public charge,
i.e. welfare recipient. Since the court cannot modify the agreement, in
order to reduce the amount, the paying party would have to prove extreme
hardship, i.e. that there are no assets and insufficient income to satisfy
- 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.
- 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.
The Compromise Option
It doesn't have to be totally one way or the other. The parties can
agree in advance that certain portions of the divorce agreement will survive
and other portions will be merged. For example, parties may agree that
the divorce agreement will survive except for the child support section,
which will be merged into the divorce judgment. This way, both sides know
that they have a finite agreement on spousal support for a fixed duration
which is frequently five years or less . However, child support which
normally lasts until a child is age 21 may be modified if the needs of
the child(ren) increase or if the payer suffers a substantial decrease
Basing the Choice on Personal Circumstance
Are you better off having the divorce agreement or parts of it survive
or merge with the divorce judgment? That decision should be based on the
individual circumstances of your case. If you are the payer, how much
have you agreed upon for support? What are your future income prospects?
The important thing is to be aware of the distinction between merging the
agreement and having it survive. It is indeed an important point to discuss
with your lawyer.
Call us today to discuss this matter further.