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An incorporated settlement agreement in divorce

Divorce orders and separation agreements sometimes contain certain words, including “merged,” “survived” or “incorporated” that may be unclear to those who are unfamiliar with such legal terminology. But these terms have very specific meanings and can significantly affect the divorce.

In several divorce cases, spouses can arrive at a settlement agreement. After introducing the agreement to the family court that possesses jurisdiction over the case, the judge will enter a decree that expresses the provisions of the agreement. This will normally occur provided the agreement is not obviously unfair. The court may use specific language on the decree, including merged, survived or incorporated. Such terms have specific meanings and can determine whether an agreement can be changed or enforced.

An incorporated settlement agreement becomes part of the divorce decree. If it is not incorporated, the agreement is unenforceable via contempt proceedings. If a divorce agreement is merged into a judgment, then the agreement becomes part of the judgment, and can subsequently be modified by the court. The judgment can say that the agreement is “merged” or “incorporated and merged.” These words mean that the agreement becomes the decree. By itself, the agreement has no legal connotation because it has completely changed into the judgment.

Either party can file a petition requesting that the court enforce the agreement in accordance with the original judgment or ask the court to hold the other party in contempt for lack of compliance with the court’s order. Usually, the spouse who wishes to alter a merged agreement is required to demonstrate a substantial change in circumstances that would support a modification that was not in existence at the time of issuance of the first judgment. If there is incorporation and merger of the settlement agreement by the court, there can only be enforcement of provisions that the court would have had the power to order.

If a divorce agreement is described as having survived a divorce judgment, this means that the terms of the agreement are incorporated into the judgment, and in addition, are a separate agreement with their own legal impact. This kind of agreement can be enforced under contract law. The party who would like to enforce the agreement has the choice of filing a claim in civil court or requesting that the family court hold the party in contempt for lack of compliance with the court’s order. This is referred to as “incorporated but not merged.”

In cases where the settlement agreement survives a divorce judgment, the divorce court possesses jurisdiction to alter an award of child support. This authority cannot be diminished simply because the parents reach an agreement to establish child support at a specific amount. Child support is ordered to safeguard the child’s interests, and the parents are not permitted to negotiate this benefit.

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