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Separation Agreements — Contracts Governed by Contract Law

By Michael B. Solomon

A separation agreement is a contract subject to the principles of contract construction and interpretation. “Where the contract is clear and unambiguous on its face, the courts must determine the intent of the parties from within the four corners of the contract.” Meccico v. Meccico, 76 N.Y.2d 822, 823 (1990); see also Cappelli v. Cappelli, 286 A.D.2d 359 (2d Dept. 2001). Normally, the only way to change the agreement is by consent of all parties. Mancini v. Mancini, 236 A.D.2d 449 (2d Dept. 1997).

There appears to be no reason why the parties to a separation agreement cannot specifically provide in their agreement that a resumption of marital relations will not be deemed a reconciliation, and that the separation agreement will not be impaired or invalidated thereby unless a formal written document is executed by the parties acknowledging such reconciliation and affirmatively canceling the agreement. Indeed, such language is commonly found in separation agreements, and its obvious purpose is to avoid subsequent litigation in the event of a failed reconciliation attempt.

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