MARRIAGE AND DIVORCE - POWER OF COURT TO MODIFY DECREE FOR ALIMONY OR PROPERTY SETTLEMENT AS AFFECTED BY AGREEMENT OF THE PARTIES

Authors

Roy L. Rogers, University of Michigan Law School

Abstract

Contracts settling the property interests of a husband and wife or providing for support of the wife or for both of these ends are no doubt valid in all jurisdictions where the parties may contract with each other if the purpose is not to facilitate divorce or future separation. Even at common law, separation agreements could be made, however, through the intervention of a trustee. If not invalid, the contract may ordinarily be enforced in an action on the promise. But, when a divorce is decreed, it is quite often the practice to incorporate in the divorce decree the provisions of the contract providing for the alimony or support payments, and sometimes property settlement provisions as well. One advantage to the party in whose favor the obligation to pay support money runs is the rapidity and efficiency of contempt proceedings to enforce the decree based on the contract. Often, however, a later change in the circumstances of the parties renders a change in the agreement and decree desirable. Similarly, one of the parties may fear the use of contempt proceedings and seek modification in order to eliminate that danger. The question of the court's power to modify the decree despite the contract incorporated therein or adopted as the basis of the decree then becomes crucial. Moreover, it is important to know whether the modification when granted will vary only the scope of the obligation enforceable by contempt, or will actually alter the entire obligation arising from either contract or decree or both.

Recommended Citation

Roy L. Rogers, MARRIAGE AND DIVORCE - POWER OF COURT TO MODIFY DECREE FOR ALIMONY OR PROPERTY SETTLEMENT AS AFFECTED BY AGREEMENT OF THE PARTIES, 39 Mich. L. Rev. 120 (1940).
Available at: https://repository.law.umich.edu/mlr/vol39/iss1/7