Divorce & Annulment Article


Should Your Property Settlement Agreement be Merged Into Your Divorce Decree?

Lucy is getting divorced. Lucy’s (soon to be) ex-husband, Ricky, has an attorney who has drafted a Property Settlement Agreement. The purpose of the agreement is to resolve all property issues between Lucy and Ricky, including all assets or liabilities accumulated by Lucy and Ricky during their marriage. Assets may include business interests (such as ownership interest in a night club), retirement accounts, investment and bank accounts, real property, spousal maintenance, and other property of value. Liabilities are generally the debts of the parties – mortgage, car note, credit cards, loans, etc.

Lucy is happy with the agreement – Lucy gets the house and Ricky gets the nightclub, but Lucy gets a portion of the profits for the next several years. And, the agreement states Lucy gets to perform at the nightclub every Tuesday night!

But the agreement says it is incorporated but not merged into the Divorce Decree. What does this mean? Is she at risk if she signs it? Merger and incorporation are not the same. An agreement only becomes part of the Decree if it is merged. The language must be very clear, in order to show the intention of the parties is to merge the agreement. For example, “it is the intention of the parties that this Property Settlement Agreement is merged.” But, again, why does it matter?

If merger occurs, the Family Law Court keeps jurisdiction over the agreement and may enforce the agreement. For example, if Ricky refuses to let Lucy sing every Tuesday night because of her terrible singing, Lucy can ask the Family Law Court to order Ricky to comply with the agreement. She can ask the Court to find him in contempt and to award her attorney’s fees.

What happens if Lucy signs the agreement and there is no merger? An agreement that is not merged but rather, is incorporated, keeps its independent status. In other words, it is a separate contract between Ricky and Lucy and contract law controls the agreement. Instead of asking the Family Law Court to enforce the agreement, Lucy must seek to enforce the agreement in Civil Court. The exception to this rule is if Lucy is awarded spousal maintenance in the agreement and she is seeking to enforce the payment of that spousal maintenance or alimony. All other claims, whether division of assets, transferring of accounts or title, payment of debts, in the agreement, must be pursued in Civil Court.

The benefit of merger is that if Ricky is being stubborn and refuses to keep the promises he made in the agreement, Lucy can go back to the Family Law Court (where the judge may or may not have familiarity with the parties and the facts). The Family Law Court can resolve Lucy’s claim by finding Ricky in contempt, entering an order granting property to Lucy, or any solution the Court deems appropriate. If the agreement is not merged, Lucy must bring her claim in Civil Court. Lucy can also seek attorney’s fees in Civil Court for the breach of contract. It is important to note that a breach of contract claim must be brought within six (6) years of the breach. Whether an agreement is merged or not, is a consideration based on a party’s situation and circumstances. Regardless, it is always important to consult with an experienced family law attorney.

Contributing Attorney: Billie Tarascio litigates family law and domestic violence cases at Modern Law.

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QUESTIONS

  • In my divorce the Judge issued a Final Ruling months ago, but it seems there is no way to get a Final Decree. My ex keeps requesting delays claiming medical issues, but has provided no proof to the court of any medical issues. In the meantime I keep paying more and more temporary spousal maintenance and attorney fees. The Judge keeps approving my exs requests for more time. My attorney has filed a Final Decree with the Judge. How long can the Judge take to sign a Final Decree (months or years)? What else could my attorny do to push along my case? No one but me wants the divorce to be done
  • MY HUSBAND ABANDONED ME 3 YRS AGO, HOW CAN I GET A DIVORCE AND HOW LONG WILL IT TAKE,I WOULD LIKE TO KEEP THE HOUSE THAT I'VE BEEN PAYING EVER SINCE HE LEFT OUR CHILDREN ARE ALL GROWN
  • my husband and his ex-girlfriend have a house and he wants to sell and she does not what can we do and what type of lawyer do we need?
  • What if I married into milatry sep 2016 he deployed sept 2016 and came back oct 2017 and i want an annulment is that possible
  • I understand that when a divorce occurs, everything accumulated is community property. However, is a disability retirement subject to joint disbursement. My online research gives me conflicting answers. How do the courts interpret this?
  • Due l can't afford a lawyer I want to start the process of my divorce by myself. No children, property or nothing to fight for. Could you please help me on how to do it, where to go or give me any advice about i
  • I have filed all of my paperwork and was advised to call the default line in 10 business days, yet I do not have a number for that. What do I do?
  • I filled divorce last March 2010 and it was dismissed on April 30,2010 then I reinstate last May 2010? When will be the divorce final, from now I did not recieved any answer from the court?
  • I live in Arizona and my spouse lives in Texas. I do not have any residence or employment information on him. Do I file for divorce in AZ or do I file in TX? I have had no contact with him since 2012. We have no children or property and I prefer to file on my own due to financial issues. Thank you.
  • My husband is incarcerated and we have two children. I am in the process of submitting my petition for a dissolution of marriage and noticed we are required to complete a parenting class. Is there a waiver for a parent that is incarcerated or any other way this class can be completed by him?

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