But Sometimes the Divorce Settlement Can be Final: Agreements not to Seek Modification

I recently wrote about the possibility that spousal support (alimony) provisions in divorce settlements might be modified in Oregon and Washington, discussing a recent case from the Oregon Court of Appeals. Only six days before that opinion, the Oregon Supreme Court issued an opinion in which it ruled that a child support settlement in a divorce could be made effectively permanent (iexcept in special situations) by including an agreement not to move for a change.


In the recent case, the spouses divorced in 2005 after a seven year marriage, with two children. They agreed to child support of $1,750 per month from the father to the mother, based on a calculation of $1,742 under Oregon’s standard guidelines. The settlement agreement included a clause that support would continue until the children reached age 21 and that neither spouse would move to reduce support.


In 2009, the father moved to reduce his support obligation based on two facts that normally would be enough of a change in circumstances to support a reduction: he had fathered two new children and was responsible for their support, and his income had decreased from $7,300/month to $6,200/month. The mother argued that the father had agreed the support settlement was permanent. In reply ,the father argued that the law didn’t allow no-modification agreements and that general public policy requred the courts to recognize the change in circumstances, which would override the settlement.


The rulings of the courts were consistent at trial, at the Court of Appeals, and at the Supreme Court. Although there was a change in circumstances, the father had agreed not to modify the support award, and the change wasn’t enough to override that agreement. Oregon has two provisions in the divorce laws stating a policy in favor of settlement unless law or public policy is broken. Based on this, if the parties agree not to seek modification, that will usually stand.


The Supreme Court explained that a child’s right to support is still protected. Parents can agree between themselves not to request support be changed, but they can’t agree that the courts are unable to change support on someone else’s motion, and both children and the state, which enforces support, are not bound and can seek a change. In addition, if a change is so drastic that enforcing it would violate public policy, the courts can disregard the settlement. An ordinary change, however, doesn’t automatically mean that the settlement can be thrown out.


Washington’s divorce laws do not have as strong a statement encouraging settlement as Oregon’s, and it appears that the question of whether divorcing spouses can agree not to request modification of child support has not been brought before the courts. As a result, it is uncertain whether a similar agreement would be enforced in Washington.


If your child support negotiations (either in divorce or nonmarital support cases) appear to be heading towards including a mo-modification clause, and you aren’t sure if you want that, talk to your lawyer. There is very little guidance available now in Oregon as to how much of a change would justify overriding a no-modification settlement, or whether they would be accepted at all in Washington. As a result, accepting a no-modification agreement will mean a change in the risk that a settlement might be changed, and you should be prepared to discuss how much risk you are willing to accept.









One Response to But Sometimes the Divorce Settlement Can be Final: Agreements not to Seek Modification

  1. Yes! Finally someone writes about divorce separation agreement.

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