Marital Domestic Separation and Property Settlement Agreement Adult Children Parties May have Joint Property or Debts effective Immediately
Note: This summary is not intended to be an all-inclusive
discussion of the law of separation agreements in Maine, 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 when signed.
The parties are free to make a private agreement addressing issues of marital
property division and spousal support.
Marital property is defined as all property acquired subsequent
to the marriage and not excluded under the terms of Section 953-2.
Property within the definiton of "marital property" may be excluded from
Section 953 by a "valid agreement of the parties".
Once the agreement is incorporated into the decree it becomes a
memorial of the court's intent and not the intent of the parties.
This is a result of the court's duty to determine, in every instance, that
the property settlement is fair and equitable based on the factors enumerated
by M.R.S.A. 953. In fact, until the court acts, either through it's
own efforts or by approving a settlement agreement presented by the parties,
marital property remains marital property.
Statutes:
Maine Revised Statutes
TITLE 19-A: DOMESTIC RELATIONS
Disposition of property:
1. Disposition. In a proceeding for a divorce, for legal
separation or for disposition of property following dissolution of the
marriage by a court that lacked personal jurisdiction over the absent spouse
or lacked jurisdiction to dispose of the property, the court shall set
apart to each spouse the spouse's property and shall divide the marital
property in proportions the court considers just after considering all
relevant factors, including:
A. The contribution of each spouse to the acquisition of
the marital property, including the contribution of a spouse as homemaker;
B. The value of the property set apart to each spouse; and
C. The economic circumstances of each spouse at the time the division
of property is to become effective, including the desirability of awarding
the family home or the right to live in the home for reasonable periods
to the spouse having custody of the children.
2. Definition. For purposes of this section, "marital property" means
all property acquired by either spouse subsequent to the marriage, except:
A. Property acquired by gift, bequest, devise or descent;
B. Property acquired in exchange for property acquired prior to
the marriage or in exchange for property acquired by gift, bequest, devise
or descent;
C. Property acquired by a spouse after a decree of legal separation;
D. Property excluded by valid agreement of the parties; and
E. The increase in value of property acquired prior to the marriage
and the increase in value of a spouse's nonmarital property as defined
in paragraphs A to D.
(1) "Increase in value" includes:
(a) Appreciation resulting from market forces; and
(b) Appreciation resulting from reinvested income and capital gain
unless either or both spouses had a substantial active role during the
marriage in managing, preserving or improving the property.
(2) "Increase in value" does not include:
(a) Appreciation resulting from the investment of marital
funds or property in the nonmarital property;
(b) Appreciation resulting from marital labor; and
(c) Appreciation resulting from reinvested income and capital gain
if either or both spouses had a substantial active role during the marriage
in managing, preserving or improving the property.
3. Acquired subsequent to marriage. All property acquired by either
spouse subsequent to the marriage and prior to a decree of legal separation
is presumed to be marital property regardless of whether title is held
individually or by the spouses in some form of coownership such as joint
tenancy, tenancy in common, tenancy by the entirety or community property.
The presumption of marital property is overcome by a showing that the property
was acquired by a method listed in subsection 2.
4. Disposition of marital property. If both parties to a divorce
action also request the court in writing to order disposition of marital
property acquired by either or both of the parties to the divorce prior
to January 1, 1972, or nonmarital property owned by the parties to the
divorce action, the court shall also order disposition in accordance with
subsection 1.
5. Decree contents. If the final divorce decree disposes of real
property, it must name the party or parties responsible for preparing and
recording the decree of divorce or abstract of the decree and paying the
recording fee after the clerk has prepared or approved the abstract. The
decree may name different parties to be responsible for different parcels.
6. Nonowner spouse claims. Notwithstanding the actual notice provisions
of Title 14,section 4455 or any other laws, a claim of a nonowner spouse
to real estate as "marital property," as defined in this section, does
not affect title to the real estate of the owner spouse until the nonowner
spouse records in the appropriate registry of deeds either:
A. A copy of the divorce complaint as filed in court;
B. A clerk's certificate of the divorce complaint, as described
in Title 14, section 4455, subsection 2; or
C. A decree or abstract of the decree as described in this section.
This recording requirement applies to all divorce proceedings in this
State or in any other jurisdiction.
7. Decree or abstract as deed. All rights acquired under former
Title 19, section 721 or 723 on or before December 31, 1971 and all rights
acquired under this section by a party in the real estate of the other
party are effective against a person when the decree of divorce or an abstract
of the decree is filed in the registry of deeds for the county or registry
district where the real estate is situated. The abstract must contain the
names of the parties, the date of the decree and the court that issued
the decree. The failure of a party to record the decree or an abstract
of the decree within a time period prescribed by former Title 19, section
725 does not affect the rights of that party as against the other party
or the other party's heirs or devisees. The recording of the decree or
abstract of the decree has the force and effect of a quitclaim deed releasing
all interest in the real estate described in the decree or abstract of
the decree, whether the interest is in fee or by statute.
8. Out-of-state divorce decrees. When a divorce has been granted
out of the State, the plaintiff, or the plaintiff's attorney, shall cause
a duly authenticated copy of the order to be recorded with the register
of deeds in each of the counties where the real estate or any part of the
real estate is situated. The appropriate recording fee must be paid prior
to the recording.
9. Omitted property. If a final divorce decree fails to set apart
or divide marital property over which the court had jurisdiction, the omitted
property is deemed held by both parties as tenants in common. On the motion
of either party, the court may set aside or divide the omitted property
between the parties, as justice may require. § 953.
Case Law:
Once the "separation agreement" was incorporated into the divorce
judgment, it became a part of the judgment of the divorce court. Torrey
v. Torrey, 415 A.2d 1092, 1094 (Me. 1980). Under such circumstances,
the language of the "separation agreement" is significant to the extent
that it reveals the intention of the divorce court. Torrey v. Torrey,
415 A.2d at 1094. It is the divorce court that must, in every instance,
determine that the property settlement is fair and equitable after considering
all relevant factors. 19 M.R.S.A. § 953. Bagley v. Bagley,
415 A.2d 1080, 1083 (Me. 1980). Thus, it is the intent of the divorce court,
rather than that of either of the parties, that is determinative. Torrey
v. Torrey, 415 A.2d at 1094.
Although parties to a divorce may fashion a private settlement agreement
addressing property division and spousal support, and the divorce court
may incorporate this agreement into the divorce decree, only an incorporated
agreement's provision not to increase alimony will survive despite subsequent
events. Hale v. Hale, 604 A.2d 38, 41 (Me. 1992). In all other circumstances,
the divorce court is empowered to "alter or amend a decree for spousal
support or specific sum when it appears that justice requires it." 19-A M.R.S.A. § 951(4) (1998). Because the divorce decree
reflects the court's consideration of all of the relevant statutory factors,
see 19-A M.R.S.A. § 951 (1998), once a "separation agreement" is incorporated
into the divorce decree, it is the intent of the divorce court, rather
than that of the parties, that is determinative of the parties' obligations.
Wardwell
v. Wardwell, 458 A.2d 750, 752 (Me. 1983).
"Marital property" is defined in 19 M.R.S.A. § 953-2 as "property
acquired by either spouse subsequent to the marriage," with several exceptions.
[§ 953-1] requires the divorce court to divide the property, Grishman
v. Grishman, Me., 407 A.2d 9, 11 (1979). Until the court makes the
division, the property remains legally marital property, by the effect
of M.R.S.A. §953, even if the parties have agreed to divide possession
and use of the property.
