Although separation agreements are very useful and a necessary first step in the process leading to divorce, as time passes, a separation agreement that was drafted at the time of the formal spilt my no longer adequately address the needs of one or both parties later on. This can be due to changing circumstances as the divorce approaches; or alternatively, one or both parties may not be following the terms of the negotiated agreement to the letter. In such situations, the separation agreement can be amended in one of several ways.
Change by mutual agreement
Separation agreements are merely private legal contracts between two parties; therefore, they can be amended by mutual consent of both parties. Ideally, this will involve the assistance of an experienced Family Lawyer who can ensure the desired changes are accurately and comprehensively included. The result will be an amending agreement of “addendum” that is dated and signed by both parties.
If the parties are unable to agree on the nature or extent of the changes, they may choose to enlist the assistance of a trained mediator to ease the amendment process along. The mediator will assist the parties to achieve negotiated, mutually acceptable changes to the separation agreement that will better reflect their current needs.
If consent amendments are not feasible under the circumstances and mediation is unlikely to work, then the parties may choose to have changes implemented with the assistance of an arbitrator. The process is similar to going to court, but less formal. A third party arbitrator will hear both sides, help to narrow down the issues and will assist in achieving a resolution that is binging on both parties.
By a Court
If none of the above solutions are appropriate or feasible in the particular circumstances, then the parties may have no other option than to have the matter determined by a court. This involves filling relevant documents by each party and attendance at a dedicated hearing to have the matter decided. It is important to note that generally, courts are reticent to amend separation agreements unless there is some inherent flaw in the manner in which the agreement was reached in the first place or where the parties circumstances have changed so significantly since the separation agreement was reached that it is no longer fair and appropriate to let the original agreement stand. The outcome will depend on the facts of each case.
Needless to say, some of these methods are more expeditious and cost efficient than others.