Marital Domestic Separation and Property Settlement Agreement Minor Children Parties May have Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all inclusive
discussion of the law of separation agreements in Washington State, 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.
Upon the filing of a Petition for Dissolution or Legal Separation, the contract,
except for those terms providing for a parenting plan for their children,
shall be binding upon the court unless it finds, after considering the
economic circumstances of the parties and any other relevant evidence produced
by the parties on their own motion or on request of the court, that the
separation contract was unfair at the time of its execution. If a
property settlement agreement is incorporated into the decree, it is not
subject to later modification.
Statutes:
Separation contracts:
(1) The parties to a marriage, in order to promote the
amicable settlement of disputes attendant upon their separation or upon
the filing of a petition for dissolution of their marriage, a decree of
legal separation, or declaration of invalidity of their marriage, may enter
into a written separation contract providing for the maintenance of either
of them, the disposition of any property owned by both or either of them,
the parenting plan and support for their children and for the release of
each other from all obligation except that expressed in the contract.
(2) If the parties to such contract elect to live separate and
apart without any court decree, they may record such contract and cause
notice thereof to be published in a legal newspaper of the county wherein
the parties resided prior to their separation.
Recording such contract and publishing notice of the making thereof
shall constitute notice to all persons of such separation and of the facts
contained in the recorded document.
(3) If either or both of the parties to a separation contract shall
at the time of the execution thereof, or at a subsequent time, petition
the court for dissolution of their marriage, for a decree of legal separation,
or for a declaration of invalidity of their marriage, the contract, except
for those terms providing for a parenting plan for their children, shall
be binding upon the court unless it finds, after considering the economic
circumstances of the parties and any other relevant evidence produced by
the parties on their own motion or on request of the court, that the separation
contract was unfair at the time of its execution.
Child support may be included in the separation contract and shall
be reviewed in the subsequent proceeding for compliance with RCW 26.19.020.
(4) If the court in an action for dissolution of marriage, legal
separation, or declaration of invalidity finds that the separation contract
was unfair at the time of its execution, it may make orders for the maintenance
of either party, the disposition of their property and the discharge of
their obligations.
(5) Unless the separation contract provides to the contrary, the
agreement shall be set forth in the decree of dissolution, legal separation,
or declaration of invalidity, or filed in the action or made an exhibit
and incorporated by reference, except that in all cases the terms of the
parenting plan shall be set out in the decree, and the parties shall be
ordered to comply with its terms.
(6) Terms of the contract set forth or incorporated by reference
in the decree may be enforced by all remedies available for the enforcement
of a judgment, including contempt, and are enforceable as contract
terms.
(7) When the separation contract so provides, the decree may expressly
preclude or limit modification of any provision for maintenance set forth
in the decree.
Terms of a separation contract pertaining to a parenting plan for
the children and, in the absence of express provision to the contrary,
terms providing for maintenance set forth or incorporated by reference
in the decree are automatically modified by modification of the decree.
(8) If at any time the parties to the separation contract by mutual
agreement elect to terminate the separation contract they may do so without
formality unless the contract was recorded as in subsection (2) of this
section, in which case a statement should be filed terminating the contract.
RCW 26.09.070 [emphasis added]
Modification of decree for maintenance or support, property disposition
--
Termination of maintenance obligation and child support -- Grounds:
(1) Except as otherwise provided in subsection (7) of RCW
26.09.070, the provisions of any decree respecting maintenance or support
may be modified:
(a) Only as to installments accruing subsequent to the
petition for modification or motion for adjustment except motions to compel
court-ordered adjustments, which shall be effective as of the first date
specified in the decree for implementing the adjustment; and,
(b) except as otherwise provided in subsections (4), (5), (8),
and (9) of this section, only upon a showing of a substantial change of
circumstances. The provisions as to property disposition may not be revoked
or modified, unless the court finds the existence of conditions that justify
the reopening of a judgment under the laws of this state.
(2) Unless otherwise agreed in writing or expressly provided in the
decree the obligation to pay future maintenance is terminated upon the
death of either party or the remarriage of the party receiving maintenance.
(3) Unless otherwise agreed in writing or expressly provided in
the decree, provisions for the support of a child are terminated by emancipation
of the child or by the death of the parent obligated to support the child.
RCW 26.09.170
Case Law:
Under RCW 26.09.070(3), amicable agreements are preferred to adversarial
resolution of property questions, and the separation contract is, therefore,
binding on the parties unless the trial court finds it "unfair" at the
time of execution. In re Marriage of Little, 96 Wn.2d 183, 192, 634 P.2d 498 (1981).RCW 26.09.070(3)
gives even wider latitude to marital partners to independently dispose
of their property by contract, free from court supervision. Nelson
v. Collier, 85 Wn.2d 602, 610, 537 P.2d 765 (1975).
A "property settlement agreement" incorporated into a dissolution
decree that was not appealed cannot be later modified. Valaer v. Valaer,
45 Wn.2d 565, 570, 277 P.2d 326 (1954).
