Under Georgia contract law, parties who consistently depart from their written terms can create a “quasi new agreement.” That rule can reach a settlement agreement never incorporated into a decree, but not one that has become part of the decree.
The Contract Rule
Under OCGA 13-4-4, where parties “depart from its terms and pay or receive money under such departure,” neither can insist on the letter of the contract until giving “reasonable notice” of an “intention to rely on the exact terms of the agreement.” Whether that has happened is ordinarily a jury question. Banks v. Echols, 302 Ga. App. 772 (2010).
The Decree Rule
An incorporated agreement is a court order, and the parties cannot change it by agreement or conduct. In Davis v. Davis, 251 Ga. 391 (1983), the decree required the father to pay $150 per month per child, the parents then agreed orally to stop exchanging their monthly checks, and neither paid the other. The Georgia Supreme Court held the out-of-court agreements were no defense, because allowing them “would destroy the power of our courts to reject inadequate, overreaching, unconscionable or otherwise invalid alimony and child custody settlement agreements.”
Meredith v. Meredith, 238 Ga. 595 (1977), explains why: “[i]t would be anomalous indeed if the parties, by private agreement after the decree, could modify the terms of a judgment.” If they agree on a change, “they must present their agreement to the court for its approval.”
One Consolation
Meredith also held that if a spouse’s failure to pay “was the result of a good faith belief that the contract was effective to modify the decree, a finding of contempt would be inappropriate.” The arrears are still owed; the spouse is simply not punished.
And once property rights under a decree are fixed, former spouses may contract anew about that property under ordinary contract law. Spivey v. McClellan, 259 Ga. 181 (1989).
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!