Legal Question in Family Law in New York

Re: Incorporate v. Incorporate and Not Merge

Incorporated and not merged means that the terms of the agreement remain valid. They are not replaced by the divorce judgment.

Re: Incorporate v. Incorporate and Not Merge

As you have already been correctly informed by the previous respondent to your question, if the Separation Agreement is incorporated and not merged into the judgment of divorce, then the provisions of the Separation Agreement continue to be binding, i.e., the separation agreement is said to survive the judgment of divorce.

Additionally: in the case where the separation agreement provides for child support payments, and, as here is "incorporated but not merged", the advantages and disadvantages include the following:

A primary advantage of "incorporated but not merged" is to you, the ex-spouse who will be receiving child support payments because when the Separation Agreement is "incorporated, but not merged", then the spouse who wants to decrease the amount of child support he/she pays, must demonstrate to the court the harder to establish legal standard that there has been either an unforeseeable and unreasonable change in circumstances which justify a decrease in child support, or that the Separation Agreement was inequitable and unfair at the time it was executed (as opposed to the easier to show standard of "substantial change in circumstances", if there is no surviivng separation agreement).

As regards moving for increased child support payments, the legal standards are pretty much the same: the standard is "substantial change in circumstances" regardless of whether or not there is a surviving separation agreement.

Note also that as regrds spousal maintenance, the disadvantage of "incorporated, but not merged" is to both spouses since then the spousal maintenance payment cannot be modified at all without a showing of "extreme harship" (as opposed to the grouds of "substantial change in circumstances" which would otherwise be available.)

Moreover, if the Separation Agreement, as here, is "incorporated but not merged", then even when the payor spouse succeeds in winning a decrease in amount of child support he/she must pay, some courts have permitted the the recipient spouse to react by suing the ex-spouse for breach of contract, i.e., the Separation Agreement.

The discussion above dealt primarily with the differing legal standards of proof which obtain when there is a separation agreement that is "incorporated but not merged" as opposed

to circumstances when there is no surviving separation agreement, for cases where modification of child support payment amount. However, those legal standards obtain only when the separation agreement which is "incorporated but not merged" does not in and of itself set the legal standards to be met. For example, in one case, the Separation Agreement provided that chld support could only be modified if "extreme hardship" was demonstrated, and therefore, since the ex-spouse could not demonstrate extreme hardship, the ex-spouse was not granted a hearing for decrease of child support payments.