Can Parties to a Divorce Settle Their Case With a Marital Settlement Agreement?
The Arizona Supreme Court enacted the Arizona Rules of Family Law Procedure. Rule 69 of the Arizona Rules of Family Law Procedure allow parties to submit a settlement agreement to resolve their case.
The Arizona Supreme Court in the case of Wick v. Wick held a judge is not required to accept a property settlement agreement signed by both parties.
The judge is, therefore, not bound to accept your agreements if the judge believes the provisions pertaining to the division of property and debts are unfair or the judge believes the provisions in the parenting plan regarding legal decision making, parenting time, and child support are not in the best interests of the children, which rarely occurs.
The only time a judge will reject an agreement is if the court believes the agreement constitutes a fraud, was not signed voluntarily, does not equitably divide the parties debts and assets, or the provisions pertaining to the children are not in the children’s best interests.
To form a binding agreement, Rule 69 requires the agreement to be in writing, or the agreement is stated in court and the terms of the agreement are recorded, or the agreement is recorded by a Judge Pro Tem during a court ordered mediation.
If one of the parties later wishes to challenge the agreement, the agreement will be presumed to be binding and the party attacking the agreement has the burden of challenging the marital settlement agreement.
The court is required to make sure the terms of the marital settlement agreement pertaining to the division of the parties assets and debts is fair and equitable and that the provisions pertaining to child custody and child support are in the best interests of the children.
Although it is rare a judge would reject an agreement between the parties, the Arizona Court of Appeals in the Boncoskey v. Boncoskey case indicated a trial judge must hold an hearing if the court has determined the agreement is not fair and equitable or in the best interests of the children before making any changes to the agreement.
You will also need to determine whether you want that written settlement agreement to survive the entry of a Decree of Dissolution of Marriage and, therefore, be enforceable as a contract separate and apart from the Decree of Dissolution of Marriage or, instead, whether you want that agreement to merge into the Decree of Dissolution of Marriage and not survive the entry of that Decree.
Whether you want the agreement to merge into the Decree or not is complicated and based upon the unique factors in your case. You can read more detailed information on “merger” and “incorporation by reference” by reading our synopsis of the Arizona Court of Appeals decision in the case of LaPrade v. LaPrade.
The Arizona Court of Appeals in the case of Muchesko v. Muchseko heard an interesting case involving a situation wherein only one of the two spouses signed the settlement agreement. The Arizona Court of Appeals concluded that, despite the fact both spouses did not sign the settlement agreement, both parties were still bound by the agreement.
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