Seeking Change in Separation Agreements
| Publication year | 1986 |
| Pages | 806 |
1986, May, Pg. 806. Seeking Change in Separation Agreements
Separation agreements are now an accepted part of domestic relations law practice. A husband and wife can enter into an agreement "attendant upon their separation or the dissolution of their marriage" that resolves spousal support, custody, child support, the disposition of assets and responsibility for debts and their right to live an unmolested separate life.(fn1) In the past, courts had difficulty accepting separation agreements since "collusion" was a defense to divorce and such agreements appeared to foster or encourage separations and divorce, thus being against public policy. The rationale for this restriction is centered on the state's interest in maintaining the status quo---that is, preserving the marriage.(fn2) However, separation agreements are becoming more common today.
After the parties have reached an agreement, they must submit it to the court for approval.(fn3) One party may seek change after the agreement is reached, but before the court approves it. The procedures and rules which govern the determination of the change are different before the agreement has obtained court approval than they are after court approval. This article discusses the manner and substance of change sought in separation agreements, both before and after court approval is obtained.
A separation agreement is governed by general contract law and is not subject to change unless its own terms provide for modification. When a husband and wife enter into an agreement, they do so in a confidential relationship. One may have superior knowledge which renders that party the equivalent of a fiduciary to the other. This superior knowledge cannot be used to one party's own advantage and to the detriment of the other; there is a duty to disclose. Thus, the nature and extent of marital assets must be explained fully and without misrepresentation or concealment. One court stated: "Equity is so zealous in this respect that a Separation Agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract."(fn4) Moreover, no fraud must be shown.
The marital partners are obligated to deal fairly with each other. The standard of review at the time the court considers the change for incorporation into the decree is that of conscionability---that is, if it is fair, just and reasonable. A leading Colorado case affirming this doctrine, In re Marriage of Manzo,(fn5) required the marital partners to deal fairly with each other.
In Manzo, the separation agreement provided the wife with the first $60,000 of the net proceeds from the sale of the family residence and the husband with the excess. Later, the husband learned that the excess would only be $10,000. Refusing to set aside the separation agreement, the Colorado Supreme Court viewed the matter "in light of the totality of economic circumstances" and found the division of net proceeds to be fair, just and reasonable. The separation agreement was not improperly procured, although no such finding was necessary before the court could consider setting it aside as being unfair. The court found the agreement to be fair and approved it.
The following factors should be considered when seeking a change in the separation agreement prior to court approval.
One consideration supporting a separation agreement is that the parties are no longer living together. At the time of the agreement or shortly thereafter, they must separate. If they do not, the separation agreement may be declared void.(fn6)
Reconciliation is a voluntary...
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