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

  • when trying to find my divorce degree to apply for ex-husbands social security after his death, finally got sent to the filing dept. and the clerk said there was no signed divorce degree in the file. The judge had never signed a divorce decree. she said i was still married to him but the ssa courts won't accept my word How do I fix the situation so I can get my ex's social security. altogether we were married 12 yrs but I disqualified because we didn't remarry for 2 yrs versus 1 yr. Neither of us ever remarried
  • Was married in VA and Nikki's recently found out that my husband is still married to one of his previous wives in VA. Can I get an annulment here on the grounds for bigamy and fraud?
  • Do u have to have a attorney to go through with a divorce
  • I got married in the US, but my spouse is a Korean citizen and never lived here, just visited. He went back to korea and got a divorce over there (mutual). Now he is legally divorced thru korean court and I have the official notarized court documents. Is it automatically accepted here in the USA? I am trying to get married again to someone else and want to make sure we are allowed to now.
  • I got married in Arizona, but we moved to another country. If we want to divorce, do we have to come back to Arizona ?
  • My husband and I lived in Pima county, I moved out and now live in Maricopa Co. What reuirements do I have to meet to esablish residency in Maricopa so I can file for divorce here?
  • I have just gotten a divorce and my exhusband is ordered to pay back money he took from our savings account when we seperated. He says that he does not have the money and will have to make payments. He was awarded our personal property which is paid off. Can I put a lien on this title? He says he is building a home is there any other way of ensuring that I will get my money returned?
  • how do I qualify for an anulment
  • Igot marry like 2years ago andhe just useme to Clem mykids he got 8000.00 eight thousand back we where to gather for 1 mouth can u. Help me feel free call me 6026722595 Erica thanks
  • I would like to enforce my divorce decree. In the decree my ex husband was to buy me out of a portion of our business. He had 2 years to buy out my portion with an agreed upon amount. He is refusing to do so. What do I need to file in order to enforce this? The business is still operating and he is employed by it.

STORIES

  • He told me that I could actually get all the money I needed by using my home as collateral. . .
  • I just helped my mother, age 89, deal with her Medicare HMO. . .
  • If you get a divorce, make sure your date of birth is on the Decree if your name is changing!. . .

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