A court’s reduction of a divorce judgment’s child support obligations, incorporated from a settlement agreement that survived the entry of that judgment, does not result in a modification of the agreement. The shortfall may still be collected through a separate action to enforce the contract.

As Nassau County Supreme Court Justice Leonard D. Steinman noted in his July 1, 2013 decision in N.S. v. A.S., N.Y.L.J. July 22, 2013, such has been the law of this State for over 70 years:

A modification of a divorce judgment or decree providing that a party is to pay a sum less than he agreed to pay does not relieve such party of any contractual obligation.

In this case, the parties entered a Stipulation of Settlement in January, 2003,resolving all issues stemming from their divorce proceedings. The parties agreed that the agreement would be incorporated but not merged into their judgment of divorce.

Among the issues resolved were custody and child support for their son, then 2½ years old. It was agreed that the wife  would receive child support from the husband in the amount of $34,000 per year ($2,833.33 per month) for 48 months and thereafter the sum of $39,146 per year ($3,262.16 per month) The increased amount coinciding with the cessation of  four years of maintenance payments to the wife at $3,833.33 per month.

The agreement reflected the ex-husband’s 2001 income was $312,121. The agreement, itself, provided that if the ex-husband’s income were to dip below $250,000, the parties would attempt to renegotiate the maintenance amount. If unsuccessful, the ex-husband could seek a downward modification of his maintenance obligation from the court. The agreement did not provide to the ex-husband with a concomitant right to seek a downward modification of his child support obligations in the event of a reduction in his income.

In April 2004, ex-husband became unemployed and subsequently took a position at the reduced salary of $150,000. In March 2006, the ex-husband moved for a downward modification of his child support and maintenance obligations (by that time, the ex-husband’s maintenance obligations had expired, but he claimed that there were arrears owed to his ex-wife based which he looked to cancel).


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Connolly Francesca.jpgThere are may circumstances which courts recognize warrant revisiting a divorce resolution. On the other hand, ongoing litigation is often unfounded and a result of the anger, bitterness, sadness, desire for revenge, etc.

In her February 3, 2012 decision in D.W. v. R.W., Westchester County Supreme Court Justice Francesca E. Connolly imposed $17,500.00 in sanctions and another $42,707.29 in counsel fees against a pro se (self-represented) ex-wife who refused to abide by repeated rulings requiring the ex-wife to discontinue her attacks on a divorce settlement reached over seven years earlier.

Following that settlement, the ex-wife had engaged in extensive post-judgment litigation to vacate the underlying agreement on the grounds that she lacked the mental capacity to understand and agree, and that the agreement was unfair, unconscionable, the product of overreaching, fraud, or some variation thereof. Her numerous attempts to challenge the stipulation were considered and rejected by several lower and appellate courts.

Nevertheless, in October, 2010, the ex-wife commenced another action against 23 defendants, including her ex-husband, her children, her former in-laws, her ex-husband’s former attorneys, and other entities. In an 81-page complaint, she claimed breach of contract and fraud for the failure to disclose various assets during the divorce proceedings. She claimed to have discovered documents showing the fraud by going through her ex-husband’s garbage cans outside his residence.


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