Very often a divorce action ends in a settlement which is memorialized in a Martial Agreement. Within the Agreement will be a provision governing child support. Those child support obligations are mirrored in the Judgment of Divorce which is entered by the Court. General practice is to have language in the Agreement providing that "the Agreement is incorporated but not merged into the parties' judgment of divorce." What this language means is that no matter what may happen to the Judgment of Divorce in the future, the Martial Agreement stands as a separate enforceable contract between the parties. Let's fast forward some years after the Agreement is entered into; the payor spouse either becomes unemployed, or suffers a pay reduction.
The child support obligation set forth in both the Judgment of Divorce and the Marital Agreement is now too onerous. The payor spouse may petition the Court for a Downward Modification of his/her child support obligation based upon the payor spouse's financial hardship. The Court grants the payor spouse's petition and reduces the child support obligation. Problem solved? Not so fast. The law is well settled in this state that while courts have the authority to modify child support obligations set forth in a Judgment of Divorce, the court is without any authority to modify the parties' contractual obligations.
Therefore, unless the parties' Marital Agreement expressly provides that a modification of Judgment of Divorce will be deemed a modification of the parties' concomitant contractual obligation, a downward modification of child support will not prohibit a party from suing for breach of contract for the failure to pay the originally agreed to child support sum set forth in the Marital Agreement. Jane K. Cristal, P.C. will review your agreement and your particular facts to determine whether a modification in child support will similarly modify the settlement agreement. For further information about all divorce issues, call Jane K. Cristal, P.C. today!