When spouses reach agreement on terms for a divorce, a written settlement document – commonly known as a Separation Agreement – is prepared. Parties then decide whether the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract. When spouses reach agreement on terms for a divorce, a written settlement document – commonly known as a Separation Agreement – is prepared. Parties then decide whether the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract. I have written about how your election impacts your ability to modify provisions in the future.
The recent decision in Griffin v. Kay is an excellent cautionary tale about making sure that the merger or survival language is clear and that both you and your spouse agree on what that language means.
Geraldine Griffin and Harry Kay divorced in 2004 and entered into an agreement calling for Harry to pay alimony of $90,000 per year until the death of either party or Geraldine’s remarriage. Their agreement provided as follows relative to merger or survival of the alimony provisions:
Notwithstanding the incorporation of this agreement in the [divorce judgment], it shall not be merged in the Judgment, but shall survive the same . . . retaining its independent significance as a contract between the parties. Provided, however, in the event of a material negative and involuntary change in the circumstances of either party, that party may seek to modify the provisions of this agreement most affected by that change.
Except as set forth in paragraph 13 above, if any judicial judgment should be sought or entered with respect to alimony . . . neither party will seek to have such judgment or any modification thereof provide for payments . . . different in any way from those provided for in this agreement.
… notwithstanding anything to the contrary, the parties agree to review alimony payments upon the normal retirement of the husband.
The 2004 Judgment of Divorce provided for the divorce agreement to survive the Judgment of Divorce. Harry filed a motion to correct the clerical error, asking the court to correct the Judgment to provide for the alimony review upon retirement and modification in the event of a material and involuntary change of circumstances. Geraldine assented to the motion.
On March 31, 2004, an amended divorce judgment was issued, providing that the agreement was “incorporated and not merged into the Judgment but nevertheless shall survive and have independent legal significance subject to the limited change of circumstance provision in paragraph 13 on page 6 and an alimony review upon the defendant’s normal retirement as provided in exhibit A, paragraph 7.” Neither party objected to the language used in the amended divorce judgment.
In 2017, upon retiring, Harry sought and was granted a downward modification of his alimony obligation. Geraldine argued that the court impermissibly modified a non-modifiable alimony obligation, arguing that the alimony provisions survived the Judgment of Divorce. The Appeals Court disagreed, finding that the agreed-upon language inserted into the amended judgment clearly identified Harry’s retirement as one of two exceptions to the agreement’s survival, thus evidencing their intent for alimony to be judicially modifiable upon Harry’s retirement.
When negotiating the terms of a divorce agreement, all of the language is important. Do not gloss over the boilerplate provisions. Be sure you understand what the language means and how it may be interpreted later, lest you find the court modifying what you thought was a non-modifiable provision.