Marital Legal Separation and Property Settlement Agreement where Minor Children and Parties May have Joint Property or Debts and Divorce Action Filed
Note: This summary is not intended to be an all-inclusive
discussion of the law of separation agreements in Alabama, but does include
basic and other provisions.
General Summary: Separation and Property Agreements
may be entered into before a divorce is filed to be effective immediately,
or may be entered into after a divorce is filed to settle the case. Those
provisions relating to alimony and division of property are considered
to be a contract and not modifiable by the Court in an action for divorce.
The provisions relating to child support are always subject to review by
the Court.
If the property settlement agreement is NOT merged into the divorce
Judgment, it is enforceable at law as a contract. If the agreement
IS merged into the decree, it loses its independent character and becomes
enforceable as a court order using sanctions such as contempt of court.
Absent fraud, concealment of assets, or misrepresentation, the agreement
relating to property and alimony as an element of the consideration for
the division of the property can not be modified without the consent of
the parties.
An agreement may also be entered into after the divorce action is
filed to resolve the case subject to court approval.
In Alabama, Separation and Property Agreements are governed by general
principles of contract and the statutory right of a husband and wife to
contract with one another.
Statutes:
Capacity of husband and wife to contract with each other:
The husband and wife may contract with each other, but all contracts
into which they enter are subject to the rules of law as to contracts by
and between persons standing in confidential relations. Section 30-4-9
Case Law:
Divorce decrees are to be construed like other written instruments,
and, if there is any uncertainty, the court must construe them so as to
express the intent of the parties. Such intent can be derived from the
provisions of the agreement." Satterfield v. Satterfield, 419 So.
2d 601, 603 (Ala. Civ. App. 1982).
Barring fraud and duress, a property settlement agreement incorporated
into a divorce decree is final and not modifiable." Mashatt v. Mashatt,
469 So.2d 607, 610 (Ala. Civ. App. 1985)
