The separation agreement is a document which results from a divorce settlement. In short, it is the agreement by which you and your ex-spouse formalize your obligations to one another post-divorce. The terms of a separation agreement either survive or merge into a divorce judgment. Whether or not your agreement has survived or merged has significant consequences in respect to changing the terms of the agreement later. All matters pertaining to children, including child support and parenting time must merge into the divorce judgment.
To modify the survived terms of an agreement you must demonstrate to the Court that there are countervailing equities. Countervailing equities is an extremely high standard to meet. In fact, in most cases, a survived term will not be modifiable except in extreme situations. The term is not terribly well defined in the case law so it’s easiest to explain it by way of example: some of the case law indicates that there will be countervailing equities when one party becomes a public charge.
In order to modify the terms of a merged agreement, the person seeking to change the agreement must prove a material and substantial change of circumstances. In order to prove a material change in circumstance, you must prove that something is different now that makes the current agreement unreasonable or unworkable. Some examples of this might be adjusting the child support order after a job loss, or changing the parenting plan now that one party is living further away. If the term you are attempting to modify is the parenting plan, it must also be in the child’s best interest in order for a modification to be ordered.
I mentioned the above-referenced law because it’s all too often that people have regrets after entering into a separation agreement. They have divorcée’s remorse. Basically, feeling as though they received a bad deal after they’ve signed on the dotted line. It is important to have an attorney review any proposed separation instrument for pitfalls because one it is signed, it cannot be changed unless there is a material change in circumstance or there are countervailing equities. Countervailing equities, in particular, is extremely difficult to prove. While you are more likely to prevail in modifying a merged term of a separation agreement it is still time-consuming, and potentially expensive.