In its June, 2019 decision in English v. Smith, the Second Department reminds to properly memorialize any agreed-upon understandings or changes to a divorce settlement agreement.

The parties’ Separation Agreement was incorporated but not merged into their 2015 judgment of divorce. The father was to pay the mother child support. In addition, the parents would share equally in the costs of their child’s undergraduate and graduate education, extracurricular activities, and uncovered medical, dental, orthodontic, eye care, and mental health treatment.

The agreement also provided that neither the agreement nor any provisions thereof could be modified or waived except by a writing “duly subscribed and acknowledged by both parties with the same formality as” the separation agreement itself.

The parties’ child began attending University College in Dublin, Ireland, on a full tuition scholarship in 2015. The father stopped making child support payments to the mother in May 2015. The father contended that the parties had agreed that they would equally share in paying the child’s living expenses in lieu of the father paying child support to the mother.


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