Top Four Ways to Amend a Separation Agreement
I have written before about separation agreements, and how they are a very useful – and one might say necessary – first step in the process leading to divorce between couples. However, as time passes a separation agreement drafted at the time of the formal split may no longer adequately address the needs of one or both of the parties later on. This may happen because circumstances have changed as the divorce approaches; alternatively one or both of the parties may not be following the terms of the negotiated agreement to the letter.
In such situations the separation agreement can be amended in one of several different ways. Here are those methods, and the main points about each that you need to know:
1) Change by Mutual Agreement.
At their essence, separation agreements are merely private legal contracts between two spouses; as such, they can be amended by mutual consent of the parties. Ideally, this will involve the assistance of an experienced family lawyer who can ensure that the desired changes are accurately and comprehensively included. The result will be an amending agreement or “addendum” which is dated and signed by the parties.
If the parties cannot agree on the nature or extent of the necessary changes, they may choose to have the assistance of a trained mediator to ease the amendment process along. The mediator will assist the parties to achieve negotiated, mutually-acceptable changes to the separation agreement which will better reflect their current needs.
If consent amendments are not feasible and mediation is not likely to work, then the parties may choose to have changes implemented with the assistance of an arbitrator. The process is similar to going to court, but is less formal: This third party arbitrator will hear both sides, will help to narrow down the issues, and will assist in achieving a resolution that is binding on both spouses.
4) By a Court.
If none of these less formal solutions are appropriate or feasible in the particular circumstances, then the spouses may have no other choice than to have the matter determined by a court. Naturally, this involves the filing of relevant documents by each party, and attendance at a dedicated hearing to have the matter decided.
Needless to say, some of these methods are more expeditious and cost-efficient than others. Note that in general, courts are reticent to amend separation agreements unless there is some inherent flaw in the manner in which the agreement was reached in the first place, or where the spouses’ circumstances have change so significantly since the separation agreement was reached that it no longer fair and appropriate to let the original agreement stand. (And the concepts and tests that courts use to make this determination will be covered in a subsequent Blog.) The outcome will depend on the facts of each case.