Marital Legal Separation and Property Settlement Agreement where Minor Children and No 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 Arizona, 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 the divorce is filed to settle the matter.
The parties may enter into a written separation agreement containing provisions
for disposition of any property owned by either of them, maintenance of
either of them, and support, custody and visitation of their children.
The terms of the separation agreement, except those providing for the support,
custody and visitation of children, are 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 agreement is unfair.
Discussion: Separation and Property Agreements are primarily
governed by the provisions of ARS § 25-317.
Statutes:
Arizona Revised Statutes
Title 25 - Marital and Domestic Relations
Chapter 3 Dissolution of Marriage
Separation agreement:
A. To promote amicable settlement of disputes between parties
to a marriage attendant upon their separation or the dissolution of their
marriage, the parties may enter into a written separation agreement containing
provisions for disposition of any property owned by either of them, maintenance
of either of them, and support, custody and visitation of their children.
A separation agreement may provide that its maintenance terms shall not
be modified.
B. In a proceeding for dissolution of marriage or for legal separation,
the terms of the separation agreement, except those providing for the support,
custody and visitation of children, are 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 agreement is unfair.
C. If the court finds the separation agreement unfair as to disposition
of property or maintenance, it may request the parties to submit a revised
separation agreement or may make orders for the disposition of property
or maintenance.
D. If the court finds that the separation agreement is not unfair
as to disposition of property or maintenance, and that it is reasonable
as to support, custody and visitation of children, the separation agreement
shall be set forth or incorporated by reference in the decree of dissolution
or legal separation and the parties shall be ordered to perform them. If
the separation agreement provides that its terms shall not be set forth
in the decree, the decree shall identify the separation agreement as incorporated
by reference and state that the court has found the terms as to property
disposition and maintenance not unfair and the terms as to support, custody
and visitation of children reasonable.
E. Terms of the agreement set forth or incorporated by reference
in the decree are enforceable by all remedies available for enforcement
of a judgment, including contempt.
F. Except for terms concerning the maintenance of either party
and the support, custody or visitation of children, entry of the decree
shall thereafter preclude the modification of the terms of the decree and
the property settlement agreement, if any, set forth or incorporated by
reference.
G. Notwithstanding subsection F, entry of a decree that sets forth
or incorporates by reference a separation agreement that provides that
its maintenance terms shall not be modified prevents the court from exercising
jurisdiction to modify the decree and the separation agreement regarding
maintenance, including a decree entered before the effective date of this amendment to this section.
ARS § 25-317.
Modification and termination of provisions for maintenance, support
and property disposition:
A. Except as otherwise provided in section 25-317, subsections
F and G, the provisions of any decree respecting maintenance or support
may be modified only as to installments accruing subsequent to notice of
the motion for modification to the opposing party and only on a showing
of changed circumstances which are substantial and continuing. 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. Modifications are effective on the first
day of the month following the filing of the petition for modification
unless the court, for good cause shown, orders the chance to become effective
at a later date.
B. Unless otherwise agreed in writing or expressly provided in
the decree, the obligation to pay future maintenance is terminated on the
death of either party or the remarriage of the party receiving maintenance.
C. Unless otherwise agreed in writing or expressly provided in
the decree, provisions for the support of a minor child are not terminated
by the death of a parent obligated to support the child. When a parent
obligated to pay support dies, the amount of future support may be modified,
revoked or commuted to a lump sum payment to the extent just and appropriate
in the circumstances and shall have priority equal to the right for family
allowance in section 14-2404. Fast due support shall have priority equal
to claims provided for in section 14-3805, subsection A, paragraph 6.
ARS § 25-327.
Case Law:
Marital partners may in Arizona may validly divide their property
presently and prospectively by a post-nuptial agreement, even without
its being incident to a contemplated separation or divorce, provided
it is fair and equitable and is free from fraud, coercion or undue influence
and that the parties wife act with full knowledge of the property involved
and their rights therein. In re Estate of Harber, 104 Ariz.
79, 449 P.2d 7, 16 (1969)(en banc).
The trial court may approve a valid separation and "property settlement
agreement" and incorporate it into the dissolution decree if the agreement
is free from fraud or undue influence and if it is fair and equitable.
Ariz. Rev. Stat. Ann. ("A.R.S.") § 25-317(A); Wick v. Wick,
107 Ariz. 382, 384, 489 P.2d 19, 21 (1971); In re Estate of Henry,
6 Ariz. App. 183, 185-86, 430 P.2d 937, 939-940 (1967).
