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Marital Settlement Agreements
Marital Settlement Agreements
Agreements made between the parties to a divorce action which settle all issues concerning their divorce, including property division, child custody, child support, parenting plans and alimony, are enforceable in Georgia. Sanders v. Colwell, 248 Ga. 376 (1981). These agreements are commonly referred to as marital settlement agreements, property settlement agreements or marital dissolution agreements. In order for these agreements to take effect, they must be approved by the presiding court and incorporated into the couple’s final judgment and decree of divorce. These agreements are normally entered into after the divorce action has been filed. Agreements in contemplation of divorce, which are agreements entered into before the divorce action is commenced settling issues of alimony, property division, child custody, child support and visitation are valid in Georgia as well. Id.
Once the parties to a divorce have come to an agreement on how they would like to divide their marital assets, either via mediation, private discussion between the parties, or some other form of dispute resolution, the parties must then seek approval of their agreement by the court presiding over the divorce. In their settlement agreement, a couple may not only resolve property division issues, but also they may resolve issues concerning alimony, child support, child custody and visitation as well. In order for an agreement to be approved by a court, it must be reviewed by the presiding judge to ensure that the agreement conforms with the law, especially when the issues of child support and child custody are involved. Gravley v. Gravley, 278 Ga. 897 (2005).
Although courts generally approve settlement agreements entered into by the parties, Georgia courts have the discretion to either approve or reject (in whole or part) settlement agreements entered into by the parties to a divorce. See Page v. Page, 281 Ga. 155 (2006) and Jones v. Jones, 280 Ga. 712 (2006). For example, a court may reject a settlement agreement that completely denies one parent visitation of the children because the absence of one parent from the lives of the children will likely not serve the children’s best interests. For more on the topic of child custody, see our section on child custody. Specifically, see our article entitled “Determining Child Custody: Best Interests of the Child.”
Once the court approves the settlement agreement, the court will then make the agreement a part of its final judgment and decree for divorce. This process is called incorporation. See generally Herndon v. Herndon, 227 Ga. 781 (1971) and Funderburk v. Funderburk, 229 Ga. 457 (1972). The rights of the parties after the entry of the final judgment of divorce are derived from the final judgment itself, not from the underlying agreement. Mehdikarima v. Emaddazfuli, 268 Ga. 428 (1997). In other words, the parties are bound to the agreement by virtue of the court’s order. This is why one party, for example, may file a motion for contempt of court if the other party does not adhere to the terms of the settlement agreement incorporated into the court’s final order.
In order for a court to review, approve and incorporate an agreement entered into by the parties, the parties must first submit the agreement, or proof of the agreement, to the court. Thus, it is best for the parties to write out their agreement to ensure that there is no later dispute concerning the agreement’s terms. In fact, a court will not incorporate an agreement until all of the agreements essential terms have been addressed. See DeGarmo v. DeGarmo, 269 Ga. 480 (1998). Additionally, in their settlement agreement the spouses must specifically describe and dispose of all property in which both spouses have an interest. Otherwise, the court’s final decree will not divest either party of their interest in the property. Newborn v. Clay, 263 Ga. 622 (1993). What this means is that if the parties forget to assign the couple’s vacation home to one particular spouse, the court’s order will not do so. Thus, the vacation home will remain the possession of both spouses, even after divorce. For this reason, it is essential to ensure that all marital property interests are addressed and appropriately divided in the settlement agreement. See our article entitled “Marital Property” for a detailed discussion of the definition of marital property under Georgia law.