A settlement agreement becomes part of a Georgia divorce decree only if the decree says so. Language that merely recites the agreement does not incorporate it.
Recital Is Not a Ruling
In Newton v. Newton, 222 Ga. 175 (1966), the decree recited that “it is agreed between the parties” that the daughter would complete her medical education and the father would pay her expenses. When he stopped paying, the Georgia Supreme Court held the provision was not an adjudication. “There is no language indicating the recited agreement between the parties was fixed, approved, incorporated into or otherwise made the judgment of the court.” Instead, “the language is couched in the mode of a recitation, not as a ruling.”
Similarly, in Harwell v. Harwell, 248 Ga. 578 (1981), a judgment that merely preserved “any existing contract between the parties” concerning the children “did not incorporate the agreement by reference, adopt it, or command the parties to abide by it.”
Language That Works
Compare the temporary order in Harwell, which directed that the agreement “be made a part of this Order and both parties are hereby ordered and commanded to abide by all the terms and conditions.” The decree in D’Errico v. D’Errico, 281 Ga. 508 (2007), stated that the agreement “is hereby approved and incorporated herein by reference as the final judgment of this Court.”
A command to perform each term is not required. Duke v. Smith, 242 Ga. 207 (1978), held that a decree supports contempt even without a “specific command.”
If the Agreement Was Left Out by Mistake
In Knox v. Knox, 243 Ga. 797 (1979), the parties discovered that their agreement had been inadvertently omitted from the decree. On their joint petition the trial court corrected the omission nunc pro tunc, and the Supreme Court approved. OCGA 9-11-60(g) allows “errors therein arising from oversight or omission” to be corrected “at any time.”
Separate posts cover what incorporation does once it happens.
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