Under the doctrine of merger, everything you and your spouse negotiated before the divorce is presumed to be absorbed into the final decree. What was not written into the decree is generally not binding.
The Presumption
Cabaniss v. Cabaniss, 251 Ga. 177 (1983), states the rule: “Negotiations and oral agreements between husband and wife, preceding divorce, as to alimony or child support, are, by presumption of law, merged in the final judgment in the divorce suit. Understandings between the husband and wife which are not incorporated into the divorce decree are not binding.”
There, a father had orally agreed to help with the children’s education but did not want it in writing. The promise was not in the incorporated settlement agreement, which had a merger clause, and the Georgia Supreme Court refused to enforce it.
The Presumption Can Be Rebutted
In Arnold v. Arnold, 227 Ga. App. 152 (1997), the spouses signed a settlement agreement and, the same day, a separate written contract about the sale of real estate. Only the settlement agreement went into the decree. The Court of Appeals enforced the real estate contract anyway, because “prior agreements are only presumed to merge into the final judgment” and “whether the doctrine of merger applies depends upon the intention of the parties.” The wife had asked that the contract be kept separate, and it covered a subject the settlement agreement did not.
Why It Matters
After merger, “[t]he respective rights of the parties after the entry of judgment are founded upon the judgment itself, and not upon the underlying agreement.” Paul v. Paul, 250 Ga. 54 (1982). So in Mehdikarimi v. Emaddazfuli, 268 Ga. 428 (1997), a wife who sued to void the settlement agreement for duress got nowhere, because voiding the contract “could have no effect on the validity of the final divorce decree itself.”
Separate posts cover side agreements and unincorporated agreements.
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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!