That separation agreement is a contract

Sara Stout Ashcraft, The Daily Record Newswire

When drafting a separation agreement, because of the personal nature of many of the terms, family law practitioners sometimes lose track of the fact that what they are drafting is a contract. Contract law is one of the first classes most law students take, and the myriad contract rules are always carefully memorized for the bar exam.

However, once family law attorneys start practicing, we tend to get involved in the various interpersonal issues that make up the day-to-day counsel to our clients. Nevertheless, failing to ensure agreements are clear on contract requirements can lead to problems later. Below are some contract issues that should be kept in mind.

Consideration: Contracts are bargains, and consideration is the cement. While the general rule is that the court will not inquire as to the adequacy of consideration, there must be some stated consideration.

In separation agreements, consideration may well be a party's waiver of a right he or she might have under the Domestic Relations Law, and the Court of Appeals has stated that an agreement as to custody arrangements can be consideration. It is not a good idea to rely on the consideration being "obvious;" be clear about what the consideration is.

Severability of Contract: This term is sometimes referred to as "separability" or "partial invalidity." Remember, there is a basic contract rule that holds if one part of a contract is invalid, the whole contract is invalid. Including a severability clause provides that if one part of the agreement is judged to be invalid, the remaining parts remain in effect.

Situs of Agreement: This term delineates what jurisdiction's law will be used to interpret the agreement. Remember the headaches of conflict of law classes? Most separation agreements drafted in New York are going to invoke New York law.

Sometimes lawyers include wording in child support provisions invoking the law of any future state of residence of the children. While this provision may be inserted by counsel in deference to the Uniform Interstate Family Support Act, specifically invoking an unknown future jurisdiction could have unforeseen consequences.

Entire Agreement in the Contract: Contract law holds that the complete agreement is within "the four corners of the contract." With separation agreements, this issue seems to be more relevant than with some other types of contracts. It is not uncommon for a client to claim that the other party "promised" something beyond what is written in the agreement.

Making this clear in the agreement itself and making sure the client understands this when executing the separation agreement can forestall problems later.

Binding Effect: This provision should ensure that if a party dies without fulfilling the terms of the agreement, his or her heirs, executors, etc. are bound by its terms.

Modification: A separation agreement is probably more susceptible to requiring a modification than any other type of contract. This is particularly true when there are young children, as the residency and child support issues often change over time.

Since it is not a good idea to encourage oral modifications which can easily be denied or disputed, a term providing that any modification be in writing, signed, and notarized or stipulated on the record of the court is advisable.

In addition to standard contract provisions, separation agreements also need provisions addressing issues pertinent to the Domestic Relations Law. Some of these provisions will be discussed in a future column.


Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

Published: Mon, Nov 02, 2015