Does sep agreement that was not incorporated become void


#1

Our sep agreement states that the terms will NOT become part of the divorce decree. I understand that this allows her to sue me for breach of contract and not contempt if I fail to comply with terms and it also doesn’t allow me to ask the court to modify terms. So, two questions.

  1. If I am taken to court for breach, won’t the judge just order me to comply and if I don’t then I will be in contempt of his order?

  2. If SA is not incorporated, what happens when I file for final decree of divorce? Do we re-negotiate terms? Does SA become null and void?


#2

1.) Yes.
2.) The SA remains a binding an enforceable contract.


#3

So, regardless of whether it is incorporated or not, the terms never change. The only difference is my ability to ask for a modification of alimony or not and her ability to sue me for breach or contempt. Seems that it doesn’t really matter at all. If she sues for breach, the judge will just hold me in contempt, so no disadvantage to her at all. If the terms convey to the final decree and it was not incorporated, am I able to file a motion to have child support and alimony reduced after decree?


#4

Your analysis of the difference between an incorporated agreement and a non incorporated agreement is correct.

If you are sued for breach and ordered to redress the issue you can be found in contempt of that order. The disadvantage to the aggrieved party is that an action for breach can become a two-step process if the resulting order is not followed.