It has been estimated that 95% of divorce cases settle before going to trial.\u00a0 When\u00a0a case settles, the terms of the agreement should be memorialized in writing.\u00a0 This written agreement is often called a “marital separation agreement” or a “property settlement agreement.”\u00a0 The agreement is subject to the judge’s approval (A.R.S. Sec. 25-317 B), but judges favor settlements, so\u00a0they rarely find a written divorce settlement agreement to be unfair and unenforceable when both sides are urging the court to accept the agreement.<\/p>\n
Occasionally, however, one of the parties will object to a written settlement agreement after signing it.\u00a0 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.\u00a0 In such cases, the party challenging the validity of the agreement has the burden to prove some defect in the agreement.\u00a0 Rule 69 (c), Arizona Rules of Family Law Procedure.<\/p>\n
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.\u00a0 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).\u00a0 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.<\/p>\n
In many cases, the settlement terms regarding division of property are outlined in the divorce decree itself.\u00a0 Divorce decrees are public records, however, and anyone can go to the courthouse and look up the terms of a divorce decree.\u00a0 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.\u00a0 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.\u00a0 A.R.S. Sec. 25-317 (D).<\/p>\n
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.<\/p>\n
Copyright \u00a9 2011, 2022 by Scoresby Family Law \u2013 J. Kyle Scoresby, P.C. All rights reserved.<\/p>\n","protected":false},"excerpt":{"rendered":"
It has been estimated that 95% of divorce cases settle before going to trial.\u00a0 When\u00a0a […]<\/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],"tags":[56,78],"class_list":["post-793","post","type-post","status-publish","format-standard","hentry","category-divorce-process","tag-marital-separation-agreement","tag-property-settlement-agreement"],"yoast_head":"\n