Marital Legal Separation and Property Settlement Agreement Minor 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 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)