Virtually every interspousal agreement contains a modification clause whereby the parties set forth procedures for subsequent enforceable modification. Many are constructed as follows:
No modification or waiver of any of the terms of this Agreement shall be valid unless: (1) in writing and executed by the party to be charged; or (2) ordered by a court of competent jurisdiction upon appropriate notice and upon an appropriate showing of changed circumstances as and if allowed under New Jersey law. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be deemed a waiver of any subsequent breach or default of any provision contained in this Agreement.
Note that there are two ways under this clause in which an agreement may be modified: (1) a subsequent writing; or (2) ordered by a court. As to the second, a court, generally, has the inherent power to modify support provisions of an agreement. Where an agreement restricts this power (such as would be the case in an agreement which contains a “non-modifiable” alimony obligation), the restriction will be upheld as long as it does not violate public policy.
However, for the purposes of this article, it is the first – modification by writing – as to which this article is addressed. Let’s take a look at the elements of the writing methodology:
(a) A writing; and
(b) Executed by the party to be charged.
The first element – a writing – is fairly straightforward – or is it? Generally speaking, an oral agreement will not suffice. Notwithstanding this expression by the parties, many if not most judges, nonetheless will honor an oral agreement coupled with a course of conduct over time. So, for instance, if the agreement provides for $1000 a month in alimony, and the parties subsequently orally agree on $1200 a month coupled with the payor’s payment and the payee’s acceptance, say, over a year, a court will most often than not honor that as an acceptable and enforceable modification.
Let’s move on to the second element – signed by the party to be charged. This means that both parties do not necessarily have to sign a writing, only the party against whom enforcement is sought. So, if the payor signs a letter to the payee agreeing to modify payments to a higher level, that (on its face) would seem to be binding. But it is not mutual. The last sentence of the clause would seem to obviate a lesser payment not accompanied by a writing.
So far, this is easy. Let’s complicate it a bit:
Alternative I: replace (1) contained in the above clause with the following:
In writing signed with the same formality as this Agreement.
This eliminates the signing by only one party. Moreover, since most agreements are witnessed and acknowledged (notarized), it (seemingly) requires those elements. Thus, on its face, while an exchange of emails would not seem to qualify as an enforceable modification, nonetheless, a court may well give credence to such a method.
Alternative II: add to the clause the following at the end:
All enforceable modifications must be in strict conformance with this provision. An oral agreement coupled with a subsequent course of conduct implementing the oral agreement, or a course of conduct by itself, will not constitute an enforceable modification.
A judge would be hard-pressed to avoid enforcement of such explicit language. Such additional language is a double-edged sword. It works both ways. While ensuring procedural certainty, it restricts post-agreement conduct flexibility.