A separation agreement is not binding when both parties seek, in effect, to modify it. Here, the parties contested numerous provisions of the agreement. The court was thus entitled to treat it as rescinded, and divide the property, order support, and award legal and physical custody of the children, in its discretion. Husband also contends the court erred in ordering him to maintain a life insurance policy with wife as beneficiary for as long as the child support obligation was in effect. Although husband had allowed the policy to lapse prior to the final order and decree, it was in effect when, several months earlier, the magistrate ordered him to maintain the policy for as long as he was obligated to pay child support.
Child support presents an altogether different situation from spousal maintenance.
To be sure, the common law traditionally held that a parent's support obligation terminated at death. When the parents obtained a divorce . . . The principle underlying every reported decision in this regard is the fundamental public policy, generally expressed in broad statutory terms, imposing an indefeasible duty upon parents to support their minor children. Courts and commentators have acknowledged that limiting the testamentary discretion of divorced parents places their children in a marginally better position than the children of non-divorced parents, but have found the disparity to be amply justified for reasons of public policy. Consistent with this view, a majority of jurisdictions additionally permit the court to secure child support payments by ordering the obligor parent to maintain some form of trust fund or life insurance for as long as the support obligation remains in effect, generally until the children reach the age of majority.