What if we want to change our separation agreement later?
Things change, especially when your family is in flux. In a divorce, all sorts of things can change, even within a relatively short period of time. If you’re in the military, the chances that things will change increase exponentially. I can’t count the number of times that we’ve negotiated a custody and visitation agreement, only to turn around and find that someone is PCSing.
Even with civilian families, things can change at the drop of a hat. What we negotiated a month or two ago can suddenly seem completely irrelevant, and something new may need to be added or substituted to the original agreement.
What if we want to change our separation agreement later?
Sure, that’s fine! As long as the both of you agree. If you don’t agree, well, it may be very difficult (or impossible) to get anything changed. If you go to court, you see, after you’ve already signed an agreement, chances are that the court will enforce what you’ve already agreed – unless, of course, it’s impossible.
But that doesn’t mean you can both agree on what the new plan should be. So, you’re back to the drawing board – at least with respect to that issue. Your whole agreement isn’t thrown out the window because one portion of it is no longer relevant. The agreement survives – and, in fact, probably has this specific language somewhere, though you never noticed before – even if one part of it is no longer true or accurate or possible to comply with.
So, how are you back to the drawing board? What I mean is that you’re back to your two original options: either reach an agreement, or to go to court. But this time, instead of litigating ALL the issues related to your divorce, if it went to court you’d only have to negotiate on the one point you wish to change.
How do we change a portion of our agreement?
If you want to change a portion of your agreement, you negotiate what’s called an addendum. An addendum is an addition to the original written agreement that specifies certain changes that are to be made to the original agreement.
When you finalize your uncontested divorce, you file the addendum along with the separation agreement and it becomes incorporated with your final divorce decree, which means that it becomes a formal, binding part of your divorce. It is given the weight and authority that would be given to it if the judge had said all of those words verbatim in your divorce and/or custody trial.
That means, both of you can use the court to enforce the agreement, and hold the other accountable for not following it.
Are there things that I can’t really change?
Yes, of course. Well, if you both agree, you can change anything. But just because you want to change, say, spousal support, doesn’t mean that he’ll agree – and, if he doesn’t you’re dead in the water. Going to court won’t help anything, because the judge will almost certainly affirm what you’ve already agreed to in your previously executed written agreement.
Written agreements are almost always enforced. Rarely are agreements overturned and, even if it WAS overturned, you’d probably be looking at tens of thousands of dollars to even get to that point. A better course of action is to pay attention to what’s being drafted BEFORE you sign, and take the negotiation process seriously. Of course, if you’ve already signed, that’s hollow advice. If you’re wondering about your agreement and whether it might be overturned, prepare yourself for a negative – but also set up a time to consult with an attorney to determine whether there’s any road forward at all. It may help to hear no, rather than just wondering. And if the attorney says she IS willing to challenge it, based on the facts, be prepared for the costs associated with that action. It will not be inexpensive.
In general, items related to equitable distribution are not modifiable – by that, I mean spousal support and property division.
Sometimes, the “how” of property division can be modified by agreement of the parties. I’ve written addendums where parties agree to sell the marital residence, and then modify later when one party decides he or she really wants to refinance and buy out the other party’s interest, or vice versa.
But it’s probably a waste of time to go back and ask for more money from the sale of the marital residence, or to ask for your marital share of the retirement after you’ve waived it or accepted less than your marital share. (After all, why would he negotiate on that point when he’s already got the larger share?) Spousal support the same way. When it comes to many things, you really only get one bite at the apple, so to speak.
Mostly, what we see modified is related to custody, visitation, and child support – because those things are always modifiable based on a material change in circumstances anyway. You can understand – the situation relating to your kids is constantly changing, so it makes sense that your custody and visitation schedule should change to accommodate that.
I need to negotiate an addendum.
Great. If you’re ready to negotiate an addendum to your original separation agreement, it’s a good time to talk to an attorney. She can help you draft an addendum to reflect your changed circumstances and begin to negotiate with your husband, or his attorney, if he’s represented by counsel.
Addendums DO complicate things a bit, of course, but they are critically necessary in many cases. After all, situations DO change, so sometimes our agreements have to change to reflect the altered circumstances. Divorce is a time in life when a lot of things are in flux and, after the dust settles, it may turn out that different arrangements are necessary than what you originally anticipated. That’s okay! We’re flexible, too, and we can help you craft a new addendum that reflects the changes that have taken place since your original agreement was negotiated.
For more information, or to set up an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200. We’re happy to help!