It’s the Law: Is my divorce settlement void if we re-married?

Q: My wife and I were previously divorced. We had a marital settlement agreement in our divorce case. We later remarried and are now getting divorced again. Is the settlement agreement from our first divorce still binding?

A: In 1995, the Florida Supreme Court addressed a situation similar to yours in the case of Cox versus Cox. In that case, the couple entered a property settlement agreement as part of their divorce, later remarried and then divorced again.

The court held that reconciliation or remarriage terminates those provisions of a prior marital settlement agreement that have not yet been completed. Those terms are known as executory provisions. Provisions that have been completed, such as transferring of assets, re-titling property and payments made are not affected by reconciliation or remarriage.

If the agreement includes an explicit statement that the parties intend for its terms to be effective even after reconciliation or remarriage, the entire agreement remains binding. Even if the agreement does not contain explicit language, references to binding effects and non-modifiability can make the agreement survive reconciliation or remarriage. Another recent case is illustrative.

In Kuchera versus Kuchera, a couple was married in 1984 and engaged counsel on three occasions concerning marital disputes, twice initiating legal proceedings for divorce. In 1991 they separated, and each hired an attorney. During the separation, they entered a marital settlement agreement but did not file it with the court. The agreement included provisions as follows:

-- Reconciliation shall not abrogate the provisions of this agreement relating to the parties property rights and support.

-- Whether the parties ever have a substantial change of circumstances is immaterial. The parties acknowledge that they waive their right to modify said alimony provisions whatsoever.

-- It being the intention of the parties that after the effective date of this agreement, there shall be between them only such rights and obligations as are specifically provided for herein, including but not limited to rehabilitative alimony, lump sum alimony, special equities and equitable distribution.

In 1993, the husband filed an action for dissolution of marriage, which was actively litigated for more than a year. They again decided to reconcile, but in 1994 they filed a joint motion for court approval of the 1992 settlement agreement. No final judgment of divorce was entered, but the court did sign an order approving the agreement.

A few years later, the parties separated. In 2003, the wife filed a petition for dissolution. The husband wanted to throw out the settlement agreement and the trial court agreed. The trial court found that the agreement was so unfair that it would be inequitable to enforce it because after signing the agreement the parties sold the marital home, the vehicles described in the agreement and had two additional children and failed to divide their accounts or deal with finances as prescribed in the agreement.

The appellate court reversed. Primary reason for holding the agreement binding was the specific language of the agreement as referenced earlier in this article even though the agreement did not specifically state it survived remarriage. Second, the court explained that under Florida law, a postnuptial property settlement agreement entered without pending litigation could be challenged for fairness. If the agreement is entered after litigation and both parties are represented by attorneys and the agreement both have had opportunity to learn the financial resources of the other through discovery in litigation, the settlement agreement may not be challenged for fairness.

Both language and circumstances of marital settlement agreements affect enforceability and the impact of reconciliation or remarriage. You should discuss the circumstances of your case and the precise wording of your settlement agreement with an experienced attorney before proceeding further.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@embarqmail.com or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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