Marital Separation Agreement

Note: This summary is not intended to be an all-inclusive discussion of the law of separation agreements in Arizona, but does include basic and other provisions.

General Summary: Separation and Property Agreements may be entered into before a divorce is filed to be effective immediately, or may be entered into after the divorce is filed to settle the matter. The parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, custody and visitation of their children. The terms of the separation agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unfair.

Discussion: Separation and Property Agreements are primarily governed by the provisions of ARS § 25-317.

Statutes: Arizona Revised Statutes
Title 25 - Marital and Domestic Relations
Chapter 3 Dissolution of Marriage

Separation agreement:

A. To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, custody and visitation of their children. A separation agreement may provide that its maintenance terms shall not be modified.
B. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unfair.
C. If the court finds the separation agreement unfair as to disposition of property or maintenance, it may request the parties to submit a revised separation agreement or may make orders for the disposition of property or maintenance.
D. If the court finds that the separation agreement is not unfair as to disposition of property or maintenance, and that it is reasonable as to support, custody and visitation of children, the separation agreement shall be set forth or incorporated by reference in the decree of dissolution or legal separation and the parties shall be ordered to perform them. If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement as incorporated by reference and state that the court has found the terms as to property disposition and maintenance not unfair and the terms as to support, custody and visitation of children reasonable.
E. Terms of the agreement set forth or incorporated by reference in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt.
F. Except for terms concerning the maintenance of either party and the support, custody or visitation of children, entry of the decree shall thereafter preclude the modification of the terms of the decree and the property settlement agreement, if any, set forth or incorporated by reference.
G. Notwithstanding subsection F, entry of a decree that sets forth or incorporates by reference a separation agreement that provides that its maintenance terms shall not be modified prevents the court from exercising jurisdiction to modify the decree and the separation agreement regarding maintenance, including a decree entered before the effective date of this amendment to this section. ARS § 25-317.

Modification and termination of provisions for maintenance, support and property disposition:

A. Except as otherwise provided in section 25-317, subsections F and G, the provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to notice of the motion for modification to the opposing party and only on a showing of changed circumstances which are substantial and continuing. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state. Modifications are effective on the first day of the month following the filing of the petition for modification unless the court, for good cause shown, orders the chance to become effective at a later date.
B. Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated on the death of either party or the remarriage of the party receiving maintenance.
C. Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a minor child are not terminated by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of future support may be modified, revoked or commuted to a lump sum payment to the extent just and appropriate in the circumstances and shall have priority equal to the right for family allowance in section 14-2404. Fast due support shall have priority equal to claims provided for in section 14-3805, subsection A, paragraph 6. ARS § 25-327.

Case Law:

Marital partners may in Arizona may validly divide their property presently and prospectively by a post-nuptial agreement, even without its being incident to a contemplated separation or divorce, provided it is fair and equitable and is free from fraud, coercion or undue influence and that the parties wife act with full knowledge of the property involved and their rights therein. In re Estate of Harber, 104 Ariz. 79, 449 P.2d 7, 16 (1969)(en banc).

The trial court may approve a valid separation and "property settlement agreement" and incorporate it into the dissolution decree if the agreement is free from fraud or undue influence and if it is fair and equitable. Ariz. Rev. Stat. Ann. ("A.R.S.") § 25-317(A); Wick v. Wick, 107 Ariz. 382, 384, 489 P.2d 19, 21 (1971); In re Estate of Henry, 6 Ariz. App. 183, 185-86, 430 P.2d 937, 939-940 (1967).