Property Division Agreements Incident to Divorce

An “Agreement Incident to Divorce” (AID) is a wonderful asset for people going through the divorce process. An AID is a document that’s sometimes prepared in addition to a decree of divorce to supplement the decree. What this means is that the spouses may enter into a written agreement concerning the division of the property and liabilities of the spouses and maintenance of either spouse. The agreement may be revised or repudiated before rendition of the divorce or annulment, unless the agreement is binding under another rule of law.

If the court finds that the terms of the written agreement in a divorce or annulment are just and right, those terms are binding on the court. If the court approves the agreement, the court may set forth the agreement in full or may incorporate the agreement by reference in the parties’ final decree. In contrast, if the court finds that the terms of the written agreement in a divorce or annulment are not just and right, the court may request the spouses to submit a revised agreement or may set the case for a contested hearing.

The parties to a divorce may enter into written agreements providing for the maintenance of either spouse or the division of the estate. The trial court may then incorporate such agreements into the final divorce decree. Agreements Incident to Divorce that are incorporated into a final divorce decree are considered contracts. An AID, approved by the court and incorporated into a Final Decree of Divorce, is enforceable as part of the decree.

An Agreement Incident to Divorce or annulment may be enforced if the agreement is reduced to writing, signed, and filed with the court of record for the divorce or annulment. In addition, if the agreement is announced in open court on the record (without a written document), the requirements of a written agreement under the Family Code are satisfied.

These agreements should be distinguished from mediated settlement agreements. Agreements Incident to Divorce allow divorcing parties to enter into written agreements without the participation of a mediator or attendance of a mediation.

On the other hand, mediated settlement agreements necessarily require mediation and a mediator. Also, an AID generally may be revised or repudiated before the court renders on it (adopts it as the order of the court). Mediated settlement agreements, once signed, cannot be revoked. A final important distinction is that, unlike Agreements Incident to Divorce, a judgment may be entered on a Mediated Settlement agreement without a determination by the trial court that the terms of the agreement are just and right.

Your agreement should be well thought through, well drafted, and executed timely by an attorney with experience in such matters, because the time to find out your divorce documents were drawn up incorrectly isn’t after they’re signed. Consult with one of the Family Law attorneys at Orsinger, Nelson, Downing & Anderson to make sure your AID is effective and enforceable.