Changes Coming.jpgYou’ve worked out your divorce settlement, executed your agreement, and had that agreement incorporated in your Judgment of Divorce. Then, the law changes. What impact does that have on your settlement? As a practical matter, none!

Most often, a change in divorce law can be the result of a judicial decision, but it can also be a result of an act of the Legislature.

A post-agreement change in law was the issue facing Kings County Supreme Court Justice Jeffrey S. Sunshine when reaching his December, 2011 decision in Russo v. Russo Willoughby. Justice Sunshine held that a decision by New York’s highest Court, the Court of Appeals, which changed controlling Appellate Division case law existing at the time the parties entered their divorce settlement agreement, did not provide the basis for an attack on that agreement.

In Russo, the parties had entered an agreement which had made no provision for the wife to share in the Variable Supplement Fund (“VSF”), a benefit the husband accrued working as a police officer. The rule of law when the parties entered into their stipulation was that the VSF was not a part of the New York Police Department pension benefit, and not a marital asset to be equitable distributed. The parties’ stipulation did provide for a division of the NYPD pension.

After signing the agreement, the Court of Appeals ruled for the first time ruled on the VSF issue, finding that a spouse’s interest in the NYPD VSF is a marital asset to be equitably divided and distributed.

Justice Sunshine ruled that that post-agreement Court of Appeals decision did not provide a basis to add a new term to the parties’ agreement or otherwise provide a basis for relief to the wife.

As was noted in Cutler v Travelers Ins. Co., 159 AD2d 1014, 552 NYS2d 998 (4th Dept. 1990):

It is well established that a party may not reopen a voluntary settlement agreement to take advantage of a subsequent change in the law.

Thus, for example, it has been held that a change in the case law governing the application of the Child Support Standards Act was not a change of circumstances warranting the modification of the parties’ child support agreement. Kneut v Kneut, 172 Misc 2d 647, 658 NYS2d 832 (Monroe Co. Fam. Ct. 1997).

The last few years have seen many changes in New York’s divorce law. No-fault divorce is here. There is a new statute concerning the award of spousal support while a divorce action is pending. Changes to post-divorce maintenance awards are expected. Rules on the appreciation in value of one spouse’s separate property are confusing and in flux. The list goes on.

New York’s public policy supports the finality of settlement agreements. While parties may want to anticipate changes in the law, at the end of the day, cases need to be resolved. Parties must be prepared to make the most prudent deal they can, now, and be grateful for being able to move on. Years, or even days in the future, parties should not look back and think, “Had I only waited . . . “