Section 7.19 Other Provisions

• Library: Family Law Deskbook and 2014 Supp

I. (§7.19) Other Provisions

General Provisions

A. Severability. If any of the provisions of this Agreement are unenforceable when incorporated as part of the court’s judgment, it shall be considered severable and enforceable by an action based on contractual obligation, and it shall not invalidate the remainder of this Agreement as incorporated in any decree.

B. Enforcement and Notice. If either party to this Agreement brings an action for failure to perform any of the obligations imposed by the Agreement or for the enforcement or clarification of the Agreement, the prevailing party in the action shall have the right to recover that party’s attorney fees and litigation costs reasonably expended in prosecuting or defending the action. [No attorney fees shall be so recovered by a party filing an action unless that party seeking to recover the attorney fees and costs shall have mailed to the breaching party written notice of the alleged failure to perform and the alleged failure was not cured within ten days after the date of mailing the notice to the alleged breaching party’s business or residence address. But no such notice is necessary for enforcement purposes for failure to pay maintenance or periodic child support as set forth herein directly or in the parenting plan incorporated herein.] No fees or costs authorized by this paragraph shall be recovered except as determined and awarded by the court in an action brought for enforcement, breach, or clarification of the Agreement.

C. Modification and Approval. The terms of this Agreement shall not be subject to modification or change, regardless of the circumstances of the parties, except as specifically set forth in the Agreement. [It is understood that this provision is not applicable to the terms of the Agreement or any Parenting Plan dealing with child custody, visitation, and support. The parties recognize that the provisions relating to custody, visitation, and support

are subject to the approval of the court and that they may be modified by the court, regardless of this paragraph.]

Note: See the note in §7.17 above regarding maintenance.

D. Mutual Releases. Subject to the provisions of this Agreement, each party has remised, released, and forever discharged and, by these presents, does himself and herself and his or her legal heirs, legal representatives, executors, administrators, and assigns remise, release, and forever discharge the other of and from all cause or causes of action, claims, rights, or demands whatsoever in law or in equity, which either party hereto ever had or now has against the other, except any and all cause or causes of action for dissolution of marriage or rights arising from this agreement or subsequent court order.

Note: Counsel should remember to exclude from a release clause any bona fide claim a party may have in unfortunate cases involving an interspousal tort. See Chapter 14 of this deskbook.

E. Mutual Waiver of Rights in Estates. Except as otherwise provided in this Agreement, each party shall have the right to dispose of his or her property of whatsoever nature, real or personal, and each party, for himself or herself, respectively, and for their respective heirs, legal representatives, executors, administrators, Personal Representatives, and assigns, hereby waives any right of election that the party may have or hereafter acquire regarding the estate of the other or to...