It has been estimated that 95% of divorce cases settle before going to trial.  When a case settles, the terms of the agreement should be memorialized in writing.  This written agreement is often called a “marital separation agreement” or a “property settlement agreement.”  The agreement is subject to the judge’s approval (A.R.S. Sec. 25-317 B), but judges favor settlements, so they rarely find a written divorce settlement agreement to be unfair and unenforceable when both sides are urging the court to accept the agreement.

Occasionally, however, one of the parties will object to a written settlement agreement after signing it.  Sometimes one side will claim she was defrauded, that she was coerced into signing the agreement or that she was under duress at the time she signed the agreement.  In such cases, the party challenging the validity of the agreement has the burden to prove some defect in the agreement.  Rule 69 (c), Arizona Rules of Family Law Procedure.

After considering the challenge to the agreement, the judge may find the agreement to be unenforceable, in which case the divorce action will proceed to trial as though the agreement never existed.  If the judge finds the agreement to be enforceable, however, the judge still must review the agreement for fairness under A.R.S. Sec. 25-317 (B).  If the judge finds the agreement to be fair, reasonable and in the children’s best interests, the divorce case is then resolved consistent with the terms set forth in the written settlement agreement.

In many cases, the settlement terms regarding division of property are outlined in the divorce decree itself.  Divorce decrees are public records, however, and anyone can go to the courthouse and look up the terms of a divorce decree.  A significant advantage of using a separate property settlement agreement (“PSA”) is that the terms of the parties’ property settlement can be kept completely confidential.  Although the judge must approve the PSA and find its terms to be “not unfair”, the PSA does not need to be filed with the Court.  A.R.S. Sec. 25-317 (D).

If you and your spouse settle your case and wish to keep your property settlement terms confidential, you should consider using a property settlement agreement that is separate and independent of the divorce decree.

Copyright © 2011, 2022 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.