Changing your separation agreement

Posted on Jan 29, 2018 by Katie Carter

In divorce and custody cases, all sorts of different things happen. No two cases are exactly the same, and so, as a result, we often see different issues present themselves. Sometimes, those different issues can result in parties who previously negotiated a signed separation agreement wanting to change some of the terms of that agreement.

Can you change your separation agreement?

Generally speaking, you are bound to the terms of the agreement you signed. A defense like, “I didn’t know,” or “I didn’t understand,” won’t save you from having to follow the terms expressly provided in your separation agreement.

Once you’ve signed, it’s really hard to un sign, and you can be fairly certain that a judge won’t reverse or undo your separation agreement for you. Almost without exception, a judge will enforce a contract (because that’s what it is) between two parties.

Why won’t a judge overturn my agreement?

There are a lot of reasons why a judge won’t overturn an agreement, but mostly, it’s to promote people being able to settle disputes between themselves, rather than requiring a judge to settle their disputes for them. Most of the time, people are happier with results they’ve negotiated themselves. It also keeps cases out of court, which means that the judge can devote his or her time to issues that really require judicial intervention.

Judges know that, in order to promote settlement between parties, people need to know they can rely on the agreements they enter into. No one would ever settle if they were afraid they could perform their half of the agreement, only to turn around and find out that the other party to the contract was released from their obligations.

When might a judge overturn your separation agreement?

Okay, so, it is POSSIBLE that a judge would overturn an agreement – but don’t get too excited. It happens in very, very narrow circumstances. An agreement could be overturned when (1) the agreement is SO BAD that no reasonable person would have signed it (essentially, it gives everything to one side only), AND (2) the person signed it under duress.

You have to have BOTH of those things together – the really, really bad agreement, and also that the person was afraid, and that’s why they signed it. In the event that your agreement gave you anything (even something very, very small), you’ll find that the “so bad that no reasonable person would have signed it” burden isn’t met, because, whatever it is, it could be a bargained-for benefit. He gave you custody of the dog – and took everything else? Well, maybe the dog was that important to you, so you were willing to give up the rest.

It might sound a little unbelievable to you on the surface, but that’s how a judge would look at it. And, you can probably already tell, that’s a really, really high burden to meet.

What if we both want to modify the agreement?

It is possible to modify an agreement if you can both agree to modify it. In that situation, you’d want to negotiate an addendum – basically, another agreement that is added on – to the original separation agreement.

That’s not to say that reaching an agreement is quick and easy; sometimes, it’s a lot of work to figure out under what circumstances, if any, you’d be willing to change your agreement.

Still, an addendum is certainly a possibility, and one we see utilized in a lot of cases.

What if he won’t agree to an addendum?

We can’t FORCE someone to agree to an addendum, any more than we could force them to agree to the separation agreement originally. If there’s no agreement, there’s no addendum. Whether you have any other options available to you depends on the issue involved.

Anything related to property distribution – real or personal, or equitable distribution – or spousal support is probably not going to be modifiable. If you went to court and asked the judge to change the terms you agreed on, you’d have to meet that burden – unconscionability of the agreement (it’s SO, SO bad no reasonable person would have signed it), and duress – we discussed earlier. It’s unlikely, frankly speaking, and bordering on impossible.

Anything related to the children (child support, child custody, and visitation) CAN be modified later on down the road. Once the divorce is finalized, once you’ve got a material change in circumstances, you can petition the court to modify any one (or all) of those issues related to your children. You could negotiate an addendum, too, of course, but if you aren’t able to reach an agreement, you’ll at least have the possibility of falling back on the ability to modify anything related to the kids.

Obviously, the best defense is a good offense. Take time to read and understand your agreement, and do some real thinking before you sign anything. It’s better to assume you won’t be able to modify it and get it right the first time than to blow too much steam afterwards trying to change what you’ve already agreed to.

For more information, or to schedule an appointment with our office, give us a call at 757-425-5200.