Divorce decree language matters. Consider the following two important principles:
First, divorces are often resolved by agreement, or settlement. After an agreement 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.” The proposed consent decree is then submitted to the assigned judge, and the judge usually signs the decree as submitted. 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.
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. In that enforcement action, the judge is obliged to enforce only what is written in the decree. The judge may not consider extrinsic or parol evidence (i.e., oral explanations of what the parties or trial judge intended by the language in the decree) in deciding the enforcement action. See In re Marriage of Zale, 972 P.2d 230, 193 Ariz. 246 (1999).
Now let’s “connect the dots.” In settled cases where 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. There can be no reference to the negotiations that went into reaching the agreement whose terms are now contained in the consent decree. The consent decree must stand alone.
In a case I recently handled for an ex-wife (Wife), the ex-husband (Husband) sought a money judgment against my client for the value of personal property items Husband claimed he was awarded in the divorce and which, he alleged, Wife had kept from him, sold or otherwise disposed of. He claimed the items were worth hundreds of thousands of dollars. The items Husband referenced, however, were not listed in the divorce decree at all. For example, the decree awarded Husband a gun safe, and Husband claimed there were valuable precious metals, guns and other items in the safe but not listed in the decree that he was also supposed to receive. My client had never even heard of most of the items Husband claimed. The case went to trial. This week we received a detailed and scathing ruling from the judge denying Husband’s claims in full because the items Husband claimed were his were not mentioned in the divorce decree. The judge punctuated his ruling by awarding my client her attorney’s fees.
In my Seven Deadly Sins 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. To be sure, no matter how careful lawyers are in drafting divorce settlement paperwork, post-divorce disputes are commonplace. Perhaps no divorce decree is 100% ironclad. As lawyers, however, we must use our best efforts to draft documents that will protect our clients.
A carefully drafted consent decree of dissolution of marriage is usually sufficient, but an alternative is available. Instead of including all property settlement terms in the consent decree of dissolution, those terms may be included in a separate contract called a “marital separation agreement” or “property settlement agreement.” See A.R.S. Section 25-317. As long as that agreement is not merged with the consent decree and remains a separately enforceable contract, either party may enforce the agreement by bringing a separate civil case, as opposed to a post-decree case in the family court. In a civil breach-of-contract action to enforce a marital separation agreement that exists independently of the decree, parol evidence may be considered if the agreement is ambiguous.
Copyright © 2011 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.