Griffin v. Kay: A caveat about how your separation agreement is written | Burns & Levinson LLP

When the spouses come to an agreement on the terms of a divorce, a written settlement document – commonly known as a separation agreement – is prepared. The parties then decide whether the agreement will either be “merged” into the divorce decree or “survive” as a separate contract. When the spouses come to an agreement on the terms of a divorce, a written settlement document – commonly known as a separation agreement – is prepared. The parties then decide whether the agreement will either be “merged” into the divorce decree or “survive” as a separate contract. I have writing about the impact of your choice on your ability to change the provisions in the future.

The recent decision of Griffin vs. Kay is a great cautionary tale to make sure the language of fusion or survival is clear and that you and your spouse agree on what that language means.

Geraldine Griffin and Harry Kay divorced in 2004 and reached an agreement requiring Harry to pay child support of $90,000 a year until either party died or Geraldine remarried. Their agreement provided the following with respect to merging or surviving support clauses:

Notwithstanding the incorporation of this Agreement into the [divorce judgment], it will not be merged into judgment, but will survive the same. . . retaining its independent meaning as a contract between the parties. However, in the event of an adverse and unintended material change in either party’s circumstances, that party may seek to modify the provisions of this Agreement most affected by such change.

Except as set forth in paragraph 13 above, if a judicial judgment should be sought or given in support matters. . . neither party will seek to have this judgment or any variation thereof provide for payments. . . differ in any way from those provided for in this Agreement.

…notwithstanding anything to the contrary, the parties agree to review alimony payments upon the husband’s normal retirement.

The 2004 divorce decree provided that the divorce agreement would survive the divorce decree. Harry filed a motion to correct the clerical error, asking the court to correct the judgment to provide for alimony review at retirement and variation in the event of a material and involuntary change in circumstances. Geraldine consented to the motion.

On March 31, 2004, an amended divorce judgment was entered, stating that the agreement was “incorporated and not merged into the judgment, but shall nevertheless survive and be of independent legal significance subject to the limited changed circumstances provision at page 6, paragraph 13 and a review of child support upon 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, when he retired, Harry requested and obtained a downward modification of his child support obligation. Geraldine argued that the court impermissibly altered an unamendable support obligation, arguing that the child support provisions survived the divorce judgment. The Court of Appeal disagreed, finding that the agreed language inserted into the amended judgment clearly identified Harry’s retirement as one of two exceptions to the survival of the agreement, thus demonstrating their intention that the alimony is judicially changeable upon Harry’s retirement.

When negotiating the terms of a divorce agreement, everything of language is important. Do not ignore boilerplate provisions. Make sure you understand what the language means and how it can be interpreted later, lest you find the court altering what you thought was an unchangeable provision.

About the author