A side agreement between divorcing spouses that never made it into the decree can still be enforced in Georgia as an ordinary contract, so long as it is consistent with the decree and covers something the decree does not.
Even One Deliberately Kept Out of the Decree
In Scott v. Mohr, 191 Ga. App. 825 (1989), the parties signed, alongside their settlement, a separate one-page agreement stating it “shall not be made a part of any court order” but “may be enforced as a separate subsequent contractual commitment.” The Court of Appeals treated it as exactly that: “a former husband and wife may enter into contractual agreements separate from any decreed by the court upon a divorce.”
A Note the Settlement Never Mentioned
In Anderson v. Larkin, 190 Ga. App. 283 (1989), a wife signed a $3,000 note to her husband for his half of a house shortly before the divorce. The settlement agreement later incorporated into the decree recited that the parties had already “completely effected a division of real property” satisfactory to each. The Court of Appeals enforced the note, because the settlement agreement “was not intended as the complete agreement of the parties regarding the disposition of real property.”
What Will Not Work
A side deal cannot undo what the court ordered for the children. In Davis v. Davis, 251 Ga. 391 (1983), a written agreement never shown to the court, which cancelled the father’s court-ordered child support, was no defense to contempt. And an oral understanding that contradicts the written agreement fails. In Basden v. Basden, 183 Ga. App. 188 (1987), the agreement said it “superseded all previous oral or written” agreements, so the wife’s claim of an oral agreement to keep $21,000 in loans outside the divorce failed.
So put the side agreement in writing, keep it consistent with the decree, and expect to enforce it by a contract suit rather than by contempt.
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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!