Changing Your Divorce Separation Agreement

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Making changes to your Separation Agreement can be accomplished through divorce mediationLet’s say you and your spouse have worked hard via divorce mediation to create the Separation Agreement. You’re now transforming one life together into two separate lives. Maybe you’ve successfully completed your divorce, or the paperwork with the signed agreement is still working its way through the legal system.

Then something happens. Life can change dramatically in the period following a divorce. You may encounter a situation that requires you to modify your divorce settlement.

  • One of you has changed his or her mind and wants to keep the house instead of sell it as part of the divorce.
  • You’ve been offered a new job in another city, which can impact several parts in divorce.
  • Your ex-spouse wants to move to a house over an hour away from the children’s schools.
  • One of you loses a job or becomes seriously ill.
  • Perhaps one of you can no longer live up to the terms of your agreement.
  • Or an unprecedented disaster changes everything, like the current COVID-19 pandemic.

Post-divorce disputes may require expert assistance to resolve. Families under transition may sometimes require a change in orders as either permanent modifications or temporary divorce modifications.

Your Existing Separation Agreement Can Be Changed

Most Separation Agreements (whether written by attorneys or mediators) have language that encourages couples to attempt to resolve disagreements in mediation prior to escalating and commencing adversarial action against each other. These Agreements usually include a version of the following understandings:

  • Before their Agreement is signed: The parties agree to return to mediation to deal with any changes suggested by their respective attorneys or any other disputes or differences that may arise during the divorce process.
  • After their Agreement is signed: If one party requests mediation to resolve a dispute, the other party will participate and make a good-faith effort to resolve the disagreement within 30 days of the request.
  • The parties generally each pay half the fee for the first mediation session plus half the fee for the preparation of the summary of the new agreement, unless otherwise mutually agreed.
  • Each party commits to notifying the other of any change in his/her residential address or telephone number within five (5) days of any such change.

How to Amend Your Separation Agreement

If you’re upset or impatient, it may seem like a good idea to just go back to the attorneys to fix your issue.

Yet, it’s better to resolve the changes and decisions outside of a county courtroom, that is, with a divorce mediator. You may use a mediator even if your original agreement was worked out through attorneys.

When mediation is successful, and both parties agree to the changes:

  1. The parties return to a scribe or a separate) attorney. The attorney would prepare a Modification Agreement and file it in the county clerk’s office.
  2. Only when the Modification Agreement is attached to an Order called “Order Modifying an Agreement” is the Modification Agreement be enforceable.
  3. The Order is presented to a Supreme or Family Court judge who signs the Order.
  4. If the Modification Agreement is not attached to an Order, the Modification Agreement would not be enforceable in a court of law.

Judicial Intervention to Change Your Separation Agreement

Any contract can be challenged; the question is how likely is it that you will prevail.

If mediation is not attempted or not successful, each party can challenge the agreement through attorneys and the court system. That’s when a good, common-sense attorney is invaluable. Initiating a frivolous or unsubstantiated lawsuit is expensive.

Generally, the following rules of enforcement are included within your Agreement:

  • If any provision of an agreement is deemed invalid or unenforceable for any reason, that does not give permission to review or invalidate the entire agreement. In other words, if you are challenging the compliance of the parenting schedule, you do not have the option to review the way retirement funds were shared.
  • If one person does not comply with the terms of the agreement, it does not give permission for the other party not to comply. In other words, there is no “tit for tat.” If child support is not paid, it does not mean that the other parent can change the parenting plan. These are separate issues. All other parts of the Agreement not specifically being addressed continue in full force and effect.
  • If one person chooses not to insist on the strict compliance of the agreement, it does not mean that he/she has waived rights to the full compliance in the future. For instance, when sharing uninsured medical expenses, perhaps one party does not request reimbursement of expenses per the agreement for months or even years. That does not mean that in the future, the person cannot then require the reimbursements within the Statute of Limitations.

Working with a mediator can help resolve a difficult situation more quickly, less expensively, and with less pain.

Resources About Changing Separation Agreements

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Photo credit: © iStockPhoto / AndreyPopov

This blog and its materials have been prepared by BJ Mediation Services for informational purposes only and are not intended to be, are not, and should not be regarded as legal, financial, or tax advice. Blog subscribers and online readers should not act upon this information without seeking professional counsel.

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