Be Careful When Incorporating Maintenance Into Marital Settlement Agreement
An issue that I have seen a few times, and that was recently before the Court of Appeals for the Southern District, involves the incorporation of maintenance (alimony) provisions into a Marital Settlement Agreement, where the agreement provides that the terms are not subject to modification.
Extreme care should be used when drafting such a document, as many times these agreements have "boilerplate" language either at the beginning or end of the document, which says that the agreement is the entire agreement and it is not subject to modification or change. That is all well and good for a contract, and the parties would want that in there for most purposes. Legally that language is not effective for child custody, visitation, or support orders, but it would be necessary for the division or property provisions.
The problem is with maintenance. If the parties agree to a certain amount and schedule for maintenance, that would normally be modifiable unless stated otherwise. However, if the "non-modifiable" language is buried elsewhere in the document, usually at the end, that would be effective to make the maintenance non-modifiable, which would put the paying spouse on the hook indefinitely. Obviously this could be a very expensive, unintended mistake.
So, the parties should make very clear, in the same paragraph, the type and duration of the maintenance, as well as whether or not it is modifiable. Also, they should make sure that the provisions for non-modification of the settlement agreement, which could be anywhere in the document, do not apply to maintenance, unless that is the intent of the parties. Also, each party should just thoroughly read and understand the agreement before signing it, even the "legalease".
For a recent case dealing with this issue, click here
