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Reconciliation After Signing Final Agreement May Cause Unexpected Problems

Question: After 23 years of marriage, I sued my husband for divorce for committing adultery. He hired a lawyer and, after only a couple of weeks of negotiations, we were able to reach a final property and support agreement. Our agreement did not include a division of my husband's rather substantial retirement that he was drawing because my lawyer told me this would have to be taken care of when we divorced.

We went before a judge who signed an order approving our agreement. My husband deeded me the house and furniture, transferred my car to me, split the bank and stock accounts, and began to pay me my monthly alimony. After several months, my husband and I decided we would try to reconcile. We went to counseling and then lived together for about a year before we decided that it was not going to work out after all.

I went back to my lawyer who again sued my husband for divorce, this time asking for a division of his retirement and support. My husband objected, saying that I had gotten all the property I was entitled to get and that my support should not be reinstated. The judge ruled with him about the retirement, but did give me support back. My lawyer says that we must appeal the retirement ruling, and my
husband is appealing the support ruling. I did not expect this result. How could this happen?

Answer: Without proper planning, when spouses enter into property and support agreements, reconcile, and then separate again, the results can be unpredictable depending on where you live and the wording of the agreement. Absent wording in the agreement to the contrary, the determination of whether parts of an agreement are invalidated by subsequent reconciliation depends upon whether the provisions are completed or will take place in the future. Generally, "executory" obligations - those which are to take place in the future such as continuing payments of support - are nullified by reconciliation, while "executed" provisions - those which have taken place like completed property transfers -- are unaffected.

If, for example, completed property transfers could be undone by reconciliation, third parties - like banks, mortgage lenders, and other creditors -- would be unwilling to contract with separated, but not divorced, individuals for fear that a reconciliation could someday reinstate their spouses' legal interests in assets that had been terminated by property settlement agreements and court orders. But support payments are different. Depending on the law of the state in which you live, your terminated support should be reinstated if you can prove your need and your husband's ability to pay. Since your husband's retirement was not divided by your "final" property settlement, it is doubtful that you can receive your share now - unless the agreement specifically reserved this right with appropriate language.

There are other idiosyncrasies which may affect the final outcome that are too complex for this explanation; however, suffice it to say, you should have contacted your lawyer before you reconciled to learn your options so that you could have steered clear of these problems. And, if your agreement had been properly worded, you and your husband could have contracted to resolve all of these questions before the fact. If your agreement had contained language to the effect that reconciliation would not affect any provision of the agreement, you would not be in this position today.

Question: My wife and I have been married for 17 years and have two children. She is a great wife and mother, but throughout the marriage, I have had feelings that she is committing adultery. It's nothing concrete, but I have confronted her over and over, and she always denies it. I have had detectives follow her, but they have found nothing. I travel a good bit, and these feelings are driving me crazy. I call her all the time to check on her, and she's always
where she's supposed to be. What can I do?

Answer: Be thankful you have a good wife and seek professional help from a good mental health clinician.

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