Divorce decree language matters.\u00a0 Consider the following two important principles:<\/p>\n
First, divorces are often resolved by agreement, or settlement.\u00a0\u00a0After an\u00a0agreement is reached, the divorce may be completed by including all the agreement’s terms in a document called a “consent decree of dissolution of marriage.”\u00a0 The proposed consent decree is then submitted to the assigned judge, and the judge usually signs the decree as submitted.\u00a0 Once the consent decree is signed by the judge, it constitutes a court order and is subject to the same treatment as a divorce decree written by a judge following a court trial.<\/p>\n
Second, when one party fails or refuses to comply with an order of the court contained in a divorce decree, a post-decree court action may be required to enforce the decree.\u00a0 In that enforcement action, the judge is obliged to enforce only what is written in the decree.\u00a0 The judge may not consider extrinsic or parol\u00a0evidence (i.e.,\u00a0oral explanations of what the parties or trial judge intended by the language in the decree) in deciding the enforcement action.\u00a0 See In re Marriage of Zale, <\/em>972 P.2d 230, 193 Ariz. 246 (1999).<\/p>\n Now let’s “connect the dots.”\u00a0 In settled cases\u00a0where the key property settlement terms are included in a consent decree of dissolution of marriage, the settlement terms must be very clearly spelled out so that if there is ever a need to enforce the decree, it will be clear, thorough and unambiguous on its face.\u00a0 There can be no reference to the negotiations that went into reaching the agreement whose terms are now contained in the consent decree.\u00a0 The consent decree must stand alone.<\/p>\n In a case I recently handled for an ex-wife (Wife),\u00a0the ex-husband (Husband)\u00a0sought\u00a0a money judgment against my\u00a0client for the\u00a0value\u00a0of personal property items Husband claimed he was awarded in the divorce and which, he alleged, Wife \u00a0had kept from him, sold or otherwise disposed of.\u00a0 He claimed the items were worth hundreds of thousands of dollars.\u00a0 The items\u00a0Husband referenced, however, were not listed in the divorce decree at all.\u00a0 For example, the decree awarded Husband a gun safe,\u00a0and\u00a0Husband claimed\u00a0there were\u00a0valuable precious metals, guns and other\u00a0items in the safe but not listed in the decree\u00a0that he was also supposed to receive.\u00a0 My client had never even heard of most of the items Husband claimed.\u00a0 The case went to trial.\u00a0 This week we received a detailed and\u00a0scathing\u00a0ruling from the judge\u00a0denying Husband’s claims in full because the items Husband claimed were his were not mentioned in the divorce decree.\u00a0 The judge\u00a0punctuated his ruling by awarding my client her attorney’s fees.<\/p>\n In my Seven Deadly Sins<\/em> article, which can be accessed by clicking the “Articles” button on the homepage of my website, I noted that the sixth deadly sin was failing to properly document the terms of any agreement reached.\u00a0\u00a0To be sure,\u00a0no matter how careful lawyers are in drafting divorce settlement paperwork, post-divorce disputes are commonplace.\u00a0 Perhaps no divorce decree is\u00a0100% ironclad.\u00a0 As lawyers, however, we must use our best efforts to draft documents that will protect our clients.<\/p>\n A carefully drafted consent decree of dissolution of marriage is usually sufficient, but an alternative is available.\u00a0 Instead of including all property\u00a0settlement terms\u00a0in the consent decree of dissolution, those terms may be included in a separate contract called a “marital\u00a0separation agreement” or “property settlement agreement.”\u00a0 See <\/em>A.R.S. Section 25-317.\u00a0 As long as that agreement is not merged with the consent decree and remains a separately enforceable contract, either party\u00a0may enforce the agreement by bringing a separate civil case, as opposed to a post-decree case in the family court.\u00a0 In a civil breach-of-contract action to enforce\u00a0a marital\u00a0separation agreement that exists independently of the decree,\u00a0 parol evidence may be considered if the agreement is ambiguous.<\/p>\n Copyright \u00a9 2011 by Scoresby Family Law \u2013 J. Kyle Scoresby, P.C. All rights reserved.<\/p>\n","protected":false},"excerpt":{"rendered":" Divorce decree language matters.\u00a0 Consider the following two important principles: First, divorces are often resolved […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[109,117],"tags":[36,44],"class_list":["post-777","post","type-post","status-publish","format-standard","hentry","category-divorce-process","category-post-decree-division-of-assets","tag-consent-decree-of-dissolution-of-marriage","tag-divorce-decree"],"yoast_head":"\n