Summary in Divorce
divorced makes for agreements -- meetings of the mind by which a couple
resolve their differences concerning asset and liability division,
alimony, health and life insurance, legal and physical custody, child
support, visitation, medical insurance and expenses and college. In
these agreements -- which are also called separation agreements,
property settlement agreements or marital agreements -- divorcing
couples divide the goods they accumulated during the marriage and
establish obligations to one another that endure after they part ways.
Agreements take shape verbally, during negotiations conducted by the
parties, their lawyers, mediators, an even an arbitrator, but they are
always put in writing, and they are legally enforceable as contracts.
At other points in a relationship, however, couples frequently
formalize understandings in writing. These agreements are antenuptial
(or prenuptial), which are signed before marriage, or postnuptial,
which are signed after marriage but before divorce.
Courts recognize that these agreements are negotiated under
circumstances that make them different from commercial contracts. Like
all contracts, however, marital agreements must be negotiated by people
with a capacity, who make an offer and an acceptance. An agreement may
not be so one-sided as to be unconscionable.
In general, a property settlement agreement is like cement: when it is
done, it is done. After a divorce is final, it is too late for a change
What Samuel Goldwyn said about oral agreements ("An oral agreement is
not worth the paper itís printed on") applies to marital agreements.
In general, courts do not recognize an oral or verbal agreement between
divorcing spouses, particularly when there is no evidence other than
the testimony of one spouse.
When a couple cannot reach agreement together, their case goes to
trial, and the courtís decision and judgment substitutes for an
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#461: Property settlement agreements are not generally modifiable once incorporated into a final decree of divorce. Issues like custody and child support are, but issues involving property and debt distribution are typically not. Do not rely on the ability to appeal a divorce order.
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