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Marital settlement agreements

On Behalf of | Jun 23, 2022 | Divorce

Intraspousal fiduciary duties: Parties to a marital settlement agreement (MSA) are bound by the same intraspousal fiduciary obligations applicable to spouses who enter into marital agreements.

With respect to activities affecting the parties’ community and quasi-community property, the statutory fiduciary obligations continue postseparation to the date of distribution of the CP or quasi-CP asset or liability in question.

And likewise, with respect to support and professional fee issues, the statutory fiduciary obligations continue postseparation until the date of a valid, enforceable and binding resolution of those issues.—final judicial child support order, whether obtained by agreement or after litigation, deemed “valid, enforceable, and binding resolution” for purposes

“Declaration of disclosure” requirements: In addition, to ensure adherence to fiduciary duties of disclosure, parties to a dissolution, legal separation or nullity proceeding are bound by two-stage “declaration of disclosure” requirements parties ordinarily required to exchange both prescribed “preliminary” and “final” disclosure declarations, along with current income and expense statements).

As the statutes affect marital settlement agreements, subject to a few very narrowly-drawn exceptions see each party or the attorney for the party must serve their “final” declaration of disclosure and a current income and expense declaration “before or at the time the parties enter into an agreement for the resolution of property or support issues …“judgment shall not be entered with respect to the parties’ property rights” unless each party (or the attorney for the party) has executed and served a copy of the “final” disclosure declaration, along with a current income and expense declaration declarations of service must be filed with court).

Public Policy Limitations: There are also certain public policy limitations on the enforceability of agreements between spouses and prospective spouses. Some are rooted in statute; others in well-established case law.

“[A] law established for a public reason cannot be contravened by a private agreement.” And “[a]greements whose object, directly or indirectly, is to exempt its parties from violation of the law are against public policy and may not be enforced.”

If a contract provision deemed violative of public policy or otherwise unlawful or unenforceable is inseverably linked to other valid provisions of the agreement, the entire agreement may be void. But, if the problem provision is distinct and severable from otherwise valid provisions, the valid provisions will be enforced.