Marin v. Anisman

A separation agreement that is incorporated but not merged into a divorce judgment survives as a separately enforceable contract that can only be set aside by plenary action, not by mo*441tion in the divorce action (Granato v Granato, 51 AD3d 589 [2008]; Thelander v Thelander, 42 AD3d 495 [2007]; Zavaglia v Zavaglia, 234 AD2d 1010 [1996]). As a result, the motion court properly declined to vacate the child support provisions of the parties’ separation agreement.

At oral argument, defendant former husband’s counsel informed the court that he had simultaneously filed a plenary action to set aside…