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Can Ex-Spouses Change A Separation Agreement?

When separating spouses can mutually decide on key factors surrounding the end of their relationship and they set out their intentions in a written and signed agreement, both parties benefit. The law encourages the use of separation agreements, and families benefit by saving time, money and the stress of litigating the case through court.

At times, though, one or both ex-spouses may wish to change their agreement after it has already been made. Our post this week looks at two avenues by which separated spouses can seek a change to a previously-signed separation agreement.

Mutual Consent By Both Parties

Signed separation agreements are considered to be legal contracts enforceable under the law. If neither party objects to a proposed change to the agreement, the ex-spouses can effectuate the change at any time.

If the change is a small one, the parties can simply amend the wording within the original document, date the change and have it initialized by both parties. But if significant or numerous changes are involved, the parties can draft and sign an entirely new agreement.

Seeking A Court Order

Courts generally respect separation agreements that are fair and legally valid. But if one spouse wishes to make a change and the other objects, then the party seeking the change can apply to the court.

Instead of changing the original agreement, a court will typically set aside (i.e. cancel) one part of the agreement or its entirety, and replace it with a court order. However, the court will only do so under certain circumstances such as:

  • Provisions that are not in the best interests of a child
  • Financial provisions that are significantly unfair to one party
  • Agreements resulting from unfair dealings such as dishonest financial disclosure by one party or where one spouse did not understand what he/she was signing

The best way to avoid having to make changes to a separation agreement is to seek independent legal advice at the time of the original drafting. An experienced family lawyer can ensure that an agreement is properly and thoroughly contemplated from the outset – legally, financially and practically.

The lawyers at Peterson Stark Scott have decades of family law experience and are available to answer your questions and provide detailed legal advice.

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