DIVORCE AGREEMENTS,SHOULD THEY SURVIVE OR MERGE?
By Sari M. Friedman, Legal Counsel
Fathers' Rights Association (NYS & Long Island)
Should Your Divorce Agreement Survive the Judgment of Divorce?
Or should it be merged into the judgment of divorce? And does it really matter?
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
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 the obligation.
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.