Non-Modifiable Spousal Support
The how to's of an enforceable non-modifiable support agreement
Non-Modifiable Spousal SupportTo assure that the spousal support established in your original judgment will not be subsequently modified, the essence of the parties' "nonmodification agreement" needs to be a WAIVER of legal rights and remedies. As the court noted in McInnis and McInnis, 199 Or App 223, (2005), "[A]dults with the capacity to do so generally are free to waive a panoply of rights, statutory and constitutional, so long as the waiver is knowing and intentional." 199 Or App at 236.
The major import of McInnis is the express declaration that a party's knowing and intentional waiver of the legal right to otherwise seek future modification of spousal support is valid and enforceable and, secondarily, that such a waiver does not amount to an unlawful attempt to
divest the court of the court's statutory authority. See McInnis at 240. And given the enactment of ORS 107.104 (which did not exist at the time of the McInnis divorce in 1994), it should make no difference whether the waiver is set forth within a stipulated judgment signed by the parties or in a marital settlement agreement that is incorporated into a judgment.
Non-Modifiable Spousal Support Devil in the detailsA carefully drafted judgment can bind a future court from modifying the agreement of the parties.