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

  • I just read that in 2017 the laws changed for military divorce. It now states the pension division in divorce is based on the service member’s rank and time in service at the date of the divorce. As I have always believed it should. So, my question is, can I go back to court and have my pension recalculated with the new formula? Thanks, Dan
  • I got married in Morocco, got my husband to U S we have been married for 3 years. One day, he decided to leave and two weeks later, I found out he was filing divorce for domestic violence, I confronted him and he said it was the only way to get his legal status. I hired an attorney and got divorced but not for domestic violence, it was for irreconsiliable marriage. Can he still get a chance to get his green card?
  • WHAT CAN I DO TO STOP BILL COLLECTORS THAT MY EXHUSBAND OWES FROM BOTHERING ME AND TELLING ME I AM RESPONSIBLE FOR HIS PAST MEDICAL BILS?
  • My husband and married in Arizona. He is incarcerated in AZ. I have moved out of state. Do I have to get divorced in AZ or can I get it done where i reside now?
  • Can I get an annulment if my husband sexually abused his step-daughter (my daughter)? He has not been charged but there is an open case with the city of Phoenix detectives. CPS is also involved. There is an order of protection which he has been served. He has left the state to avoid being questioned and going to jail due to not following the order of protection.
  • What happends next when my spouse responds to the divorce?
  • Can I get my money back for my lawyer. My divorce never went through since 2004. I believe my lawyer never pursued the issue & I am still married ..what can I do
  • the father of my children, my husband, lives in Phoenix, AZ. he no longer wanted us. no blames that on adhd he has. since may 25 our two sons and i moved to S.C. now my husband says he wants his children back. am i able to file for divorce in AZ even though i now live in S.C.?
  • We would like to start the Divorce process ourselves, when we file the Petition do we have to submit a parenting plan at that time if we are planning on joint custody of our two minor children. Having trouble just getting started, thank you.
  • How can my ex-husband file court papers changing the custody orders made with our divorce, stating that i can not take my son out of the county they live in. hes not even his son. its a long story and i need help getting my kids back.

STORIES

  • He told me that I could actually get all the money I needed by using my home as collateral. . .
  • Age discrimination in the workplace. . .
  • He told me that I could actually get all the money I needed by using my home as collateral. . .

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