Separation Agreements--Merger and Enforcement

property divisionIn a divorce action, the separation agreement is usually merged into the Court's dissolution decree. That means the terms of the agreement are set forth in the decree, and become a court order. This is called a merger . At that point, your obligations are no longer contractual obligations imposed by the separation agreement; your obligations are now to the Court, to obey its order. This means the judge can hold you in contempt for not following the decree, which means fines and even jail. That can be very useful if the decree calls for your ex fails to pay certain debts as obligated by the decree; your ex is now answerable to the judge.

When merger occurs, the separation agreement is then superseded by the court decree. Consequently, a contractual provision that is set out in the separation agreement but not in the decree is superseded. Once the separation agreement has been merged into and become part of the court's decree, property division provisions cannot be modified.

Merger is not mandatory; sometimes the parties wish to keep the terms of their agreement private, and may therefore not want them set out in the decree (which is a public record). The decree may reference the agreement without disclosing its terms. This is not a merger. Accordingly, if the separation agreement is violated, a contract lawsuit must be brought; enforcement by contempt is not available.

If you are facing divorce, child custody, child support, visitation, property division, or other issues, you need a hard fighting, straight talking Phoenix divorce lawyer on your side. So contact us today for a free consultation.