Aside from the case specific provisions, Separation Agreements contain a lot of “legalese.” Legalese is the language that means a lot to the lawyers because it preserves the rights of their clients, but practically speaking, may not mean so much to the client at the immediate time of divorce, or so they think. Many people who are anxious about their divorce and caught up in emotions fail to really understand or even read all the legalese contained in the Agreement.
One very important legalese provision is the Effect of Agreement. This tells the judge how the Separation Agreement should be treated, and it can be very problematic when trying to change or modify the divorce judgment down the road. The two types of Effects are to “incorporate and merge” or “remain as an independent contract.” Unless it directly affects minor children, Judges usually won’t question your choice of Effect. It is assumed that both parties have had ample opportunity to contemplate future scenarios and address concerns with their respective attorneys. The consequences of each, however, can be very different.
Here’s a classic example of what I mean. Husband and Wife get divorced and execute a Separation Agreement that states the Agreement shall survive as an independent contract. One of the provisions calls for Husband to provide health insurance to the Wife for so long as she is eligible to remain on his employer provided plan. Five years later the Husband remarries, and Wife gets kicked off Husband’s plan. She has no money to remain on his plan at her own cost and ends up either on state assistance or with grossly inferior health insurance coverage. She now wants to modify the Separation Agreement to require the Husband to keep her on his plan and pay for it. Will she succeed in an action to modify the terms of the divorce?
The short answer is “probably not.” The Wife agreed at the time of divorce to enter into a Separation Agreement that survived as an independent contract. It created a presupposition that there may be a future date when the she would have to obtain her own coverage and/or assume the expense of maintaining herself on the Husband’s plan.
To come forward now and say, “Oops, I didn’t know,” or, “I didn’t think he would get remarried,” will not meet the burden of proof necessary to succeed in the modification of an Agreement that survived as an independent contract. On the other hand, if the Agreement had been “merged and incorporated,” the Wife’s chances of meeting her burden of proof would increase dramatically as the burden of proof is significantly less.
Judges rely heavily on this “merge and incorporate” or “remain as an independent contract” language when determining whether to modify a divorce judgment as it relates to issues such as spousal support and health insurance coverage. Contemplating your future financial position post-divorce can make all the difference. Make sure to ask your attorney questions, try real hard to look at your life beyond the emotional rollercoaster called divorce, and please, read the legalese.
By: Melissa R. Gillis, Esq.
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