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Property Settlement May Survive Remarriage

Question: Last year, my husband and I had marital problems which led to our separation. We each hired attorneys who helped us negotiate an agreement which divided our property equally and established support payments for me. After the judge approved the agreement, the property was divided, and my husband began making payments of alimony; however, before we divorced, we were able to get back together and lived together. My husband continued to pay me the alimony. We have now separated again. We each acquired more property during our reconciliation. Do we have to go back to court again or is our agreement still effective? We don't want to spend any more money on lawyers unless we have to.

Answer: The answer to your question depends on the wording of your agreement and the law of your state.

Because preservation of the marriage is of primary importance to the courts of each state, reconciliation is encouraged. That's why courts try not to discourage spouses from attempting a reconciliation for fear that an unsuccessful reconciliation effort could lead to unfavorable legal consequences.

What is and what is not a "reconciliation" for legal purposes also depends upon the facts of each case. For example, a few isolated acts of sexual intercourse has been found to be only an "attempt" to reconcile and does not constitute a reconciliation.

There is a legal distinction between an agreement which contains "executory" (to be performed) provisions and an agreement which has been "executed" and makes an actual division of property between the spouses. These questions are answered based upon the intention of the spouses which is gathered from the terms of agreement.

Assuming you and your husband effected a reconciliation, the general rule is that the "executory" (unperformed) provisions of a property settlement agreement are voided by a subsequent reconciliation unless the agreement states otherwise, while the "executed" (performed) provisions of a property settlement agreement will be unaffected by the reconciliation. If this was not the case, third persons who purchase property divided under a separation agreement would not take clear title.

That said, generally speaking, if a husband and wife sign a comprehensive property agreement after full financial disclosure, effectuate the transfers of assets, and intend to settle all potential marital issues for once and for all, the executed provisions of that agreement will survive a reconciliation.

Depending on where you live, the courts may consider this type of agreement as a post-nuptial agreement rather than a separation agreement, depending on your intent and that of your husband which will be established based on all of the facts.

The question of alimony is another story. Depending on the wording of the agreement and the law of your state of residence, the alimony provisions may or may not continue. Generally speaking, reconciliation will void an unperformed obligation to pay alimony unless the agreement provides to the contrary. Here, since your husband continued to pay you support, it is probable that the award will continue.

Bottom Line: Well-drafted separation agreements contain provisions which automatically deal with the issues you raise. We don't know whether or not they are contained in your document We suggest that you go back to your lawyers and get opinions on all these issues. Since significant economic, inheritance and other rights will be affected by how these matters are resolved, it is unwise to not get your questions answered by competent legal professionals in your area of the country.

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