- What are marital separation and settlement agreements?
A Separation Agreement generally refers to an agreement, executed by husband and wife, that memorializes their intention to permanently separate (live separately and apart). It typically includes negotiated provisions pertaining to their respective financial interests and relating to the children of the marriage. Some of the matters that are addressed include distribution of property, alimony/spousal support, child support, custody, and similar issues. The phrase "Separation Agreement" usually refers to an agreement that is executed before there has been a filing for divorce. In contrast, a "Settlement Agreement" usually refers to an agreement executed after there has been a divorce filing. In actuality, the two types of agreements are nearly identical, with the exception that the divorce agreement generally makes reference to the existence of an ongoing divorce action.
- Are separation agreements enforceable under Missouri law?
Yes. The Missouri Statutes specifically promote separation agreement as a means by which couples can amicably resolve their financial and other issues so as to avoid the extensive cost and time associated with having these issues resolved in court. The Domestic Relations section of the Missouri Statutes provides, in relevant part:
452.325. Separation agreements authorized, effect of - orders for disposition of property, when - terms of agreement, how enforced. -
- To promote the amicable settlement of disputes between the 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 the maintenance of either of them, the disposition of any property owned by either of them, and the custody, support and visitation of their children.
- In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except terms providing for the custody, support, 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 unconscionable.
- If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement or the court may make orders for the disposition of property, support, and maintenance in accordance with the provisions of sections 452.330, 452.335 and 452.340.
- If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:
- Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or
- If the separation agreement provides that its terms shall not be set forth in the decree, only those terms concerning child support, custody and visitation shall be set forth in the decree, and the decree shall state that the court has found the remaining terms not unconscionable.
- Terms of the agreement set forth in the decree are enforceable by all remedies available for the enforcement of a judgment, and the court may punish any party who willfully violates its decree to the same extent as is provided by law for contempt of the court in any other suit or proceeding cognizable by the court.
- Except for terms concerning the support, custody or visitation of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.
- If we present the agreement to a Missouri court as a part of a divorce case, will a Missouri court inquire about our financial circumstances?
Usually not. With the exception of provisions relating to children (e.g. child support) the Courts usually do not undertake an extensive inquiry or investigation regarding underlying financial circumstances. However, courts are allowed to investigate and examine the economic circumstances of the parties to the divorce and other relevant factors in determining conscionability of the settlement agreements. (Dow v. Dow, 732 S.W.2d 906 (Mo.banc)). If your agreement is found to be unfair or does not fully address all of the marital assets or debts, the Court will likely make rulings that can be substantially different from your written agreement.
- How can I enforce a separation agreement that was incorporated into a judgment of divorce in Missouri?
When a separation agreement has been incorporated into a dissolution decree, it can be enforced in the same manner as any court judgment. Missouri courts have held that where settlement agreements set forth ongoing obligations (for example, that one side will occupy the former marital residence), the parties have fiduciary duties to each other with respect to such obligations.
- In the absence of a separation agreement, what is the standard for maintenance/spousal support under Missouri law?
In cases in which the parties have not entered into a marital agreement, the court generally looks to whether each party is able to meet his or her "reasonable needs" in assessing whether, and for how long, maintenance is appropriate. The term "reasonable needs" does not necessarily refer to the standard of living during the marriage, although the parties' marital lifestyle is a relevant factor.
- Can the parties put in their agreement that their agreement's maintenance provisions are not subject to modification in court?
Yes. The Missouri courts have issued several published decisions in which requests for modification of maintenance were denied based on language in the subject agreements that prohibited subsequent modification absent the explicit written agreement of the parties.