March 2004

Modifiability of Agreement-Based Alimony

Laura W. Morgan

A settlement agreement’s provisions regarding spousal support is always nonmodifiable if: (1) it is actually a disguised property division; (2) it is contractual lump sum alimony; (3) it is part of an integrated bargain. Moreover, a settlement agreement’s provisions regarding spousal support is always modifiable if: (1) it is merged; (2) it is disguised child support.

As to true periodic spousal support that is incorporated but not merged, there are four ways the courts approach the issue of modification of spousal support contained in a separation agreement incorporated into a decree of divorce. First, some states provide that the court always has the authority to modify spousal support, even if the parties agree to make the support nonmodifiable (Rule 1). This is an extreme minority position. Second, some states provide that the court has the authority to modify spousal support, unless the agreement provides otherwise (Rule 2). Third, some states provide that the court has the authority to modify spousal support, unless the agreement provides otherwise; however, the change in circumstances threshold is higher (Rule 3). Fourth, some states provide that the court no power to modify the spousal support provisions of an unmerged agreement, unless the agreement specifically provides that the court can modify the spousal support provisions (Rule 4).

It is worth noting that the Uniform Marriage and Divorce Act prohibits modification of maintenance obligations if the settlement agreement contains a non-modification clause and, in the absence of such a clause, permits modification only if changed circumstances rendered them “unconscionable” (Rule 3). Uniform Marriage and Divorce Act § 316(a). This strict standard was designed to discourage former spouses from using the modification process “repeatedly for vexatious purposes only.” Uniform Marriage and Divorce Act § 316 comment (“This strict standard is intended to discourage repeated or insubstantial motions for modification.”).

The chart below states the rule for each state. The chart was derived from the following sources: Laura W. Morgan and Brett R. Turner, Attacking and Defending Marital Agreements § 6.032 at 257-267 (ABA 2001); Alexander Lindey and Louis I. Parley, Lindey and Parley on Separation Agreements and Antenuptial Contracts § 22.65[1] (2000); John J. Michalik, Annotation, Modification of Agreement-Based Divorce Decree-Alimony, 61 A.L.R.3d 520 (1975 & Supp.); 24A Am.Jur.2d Divorce and Separation § 817 (1998). See also Toni v. Toni, 636 N.W.2d 396, 2001 ND 193 (2001) (discussion with case citations).

 

Current Cases

Current Periodicals