What are the circumstances that could prevent the separation agreement from being included in the divorce decree? I’ve heard that this could delay the divorce, if one spouse wants it included and the other doesn’t. Can you explain more about how this works? My understanding is that the advantage of having it included is that then everything is considered court-ordered and it is therefore more enforceable if the other party does not follow through with what is outlined. Is this true?
If the Separation Agreement has language which prohibits the same from being incorporated into a decree you cannot do so.
Basically the advantage of having an Agreement incorporated is that it is enforceable by the court’s contempt powers in the event of a breach. If an Agreement is not incorporated the remedy for breach is to sue on the contract itself. It is not that either option makes the Agreement more or less enforceable, just the avenues are different. Alimony becomes modifiable if an Agreement is incorporated, meaning either side can request a modification based on a substantial change in circumstances. I cannot advise you on whether or not there it is advantageous to incorporate your Agreement without having all of the facts of the case and in the course of full representation.
Do you know what would be a material change that would warrant a change to the alimony outlined in the SA?
A substantial change in the income of either party.
I am facing a simular thing. My ex does not want to incorperate the SA in the divorce decree, yet he wants to modify what he pays due to change in business income. I am confused as to the best way to protect myself here. If he’s not court ordered to pay, he won’t pay. There has to be a consequence for him not paying or he won’t pay is what I’m trying to say. So my question is should I push to have the SA incorperated in the DD or will it matter?
If the agreement does not prohibit incorporation I would recommend you move to have it incorporated, otherwise your remedy for non payment is a breach of contract action.