Often during the negotiations between the parties during a divorce the parties will come to an agreement both regarding the division of marital assets and likewise the nature of custody and support. The property settlement agreement between the parties reflects how much support should be paid between the parties. However, circumstances can and do change. Simply because there has been an agreement incorporated into a divorce decree this does not prevent the parties from challenging the amount of support paid. Support agreements incorporated into custody agreements or divorce decrees are considered advisory rather than controlling for the purposes of future modifications of support. E.B. v. A.D.B., 2016 Pa. Super. Unpub. LEXIS 1923, 153 A.3d 1097 (2016) follows this proposition.
In E.B., Supra. the parties came to an agreement regarding support and then the wife challenged that agreement when she found out that the husband was getting a vacation fund paid for by the Union. The Court concluded that the money paid by a father’s union job into a union vacation fund was considered income and should have been included in the calculation of Father’s support obligation.
The husband argued that the parties’ Agreement/Amendment overrides the Court’s conclusion that the vacation pay must be included in the calculation of the monthly support payment. In the agreement the payment was apparently designated as a contribution for Child’s future schooling. The Court concluded that pursuant to Reisinger v. Kraisinger, 2007 PA Super 197, 928 A.2d 333 (Pa. Super. 2007), the Court had the power to require that Father’s vacation pay be included in the calculation of his income for support purposes, because failing to calculate it in that manner would reduce the monthly support payment. See Kraisinger, Supra. 928 A.2d at 340-41 (stating that when the agreement gives “less than can be given to provide for the best interest of the children, it falls under the jurisdiction of the court’s wide and necessary powers to provide for that best interest…”). Simply stated, the Agreement/Amendment is advisory, not controlling and the Court could do what it wanted to change the agreement. Thus, at least as far as support is concerned, although divorce Decrees are considered final – support agreements are not