Marital Legal Separation and Property Settlement Agreement for persons with no Children, no Joint Property, or Debts Effective Immediately
Note: This summary is not intended to be an all-inclusive
discussion of the law of separation agreements in Idaho, but does include
basic and other provisions.
General Summary:
Idaho is a community property state. The property rights of
husband and wife will be determined by the court, unless there is a marriage
settlement agreement entered into prior to or during marriage containing
stipulations contrary to the provisions of the statutes. Marriage
settlement agrements must be in writing, executed and acknowledged in the
same manner as conveyances of land. If the agreement is unrecorded it is
still binding between the parties absent intervening rights.
An Agreement "incorporated" but NOT "merged" into the final divorce
decree, has been examined by the court and referenced for approval but
it maintains its separate existence and may be enforced as a contract between
the parties.
Statutes:
Title 32
Domestic Relations
Chapter 9
Husband and Wife - Community Property
PROPERTY RIGHTS GOVERNED BY CHAPTER: The property rights
of husband and wife are governed by this chapter, unless there is
a marriage settlement agreement entered into during marriage containing
stipulations contrary thereto. Sec. 32-916.
FORMALITIES REQUIRED OF MARRIAGE SETTLEMENTS:
All contracts for marriage settlements must be in writing, and executed
and acknowledged or proved in like manner as conveyances of land are required
to be executed and acknowledged or proved. Sec. 32-917.
MARRIAGE SETTLEMENTS -- RECORD: When such contract is acknowledged
or proved, it must be recorded in the office of the recorder of every county
in which any real estate may be situated which is granted or affected by
such contract. Sec. 32-918.
MARRIAGE SETTLEMENTS -- EFFECT OF RECORD: The recording
or nonrecording of such contract has a like effect as the recording or
nonrecording of a conveyance of real property. Sec. 32-919.
MARRIAGE SETTLEMENTS -- CAPACITY OF MINOR: A minor capable
of contracting marriage may make a valid marriage settlement. Sec.
32-920.
Case Law:
When parties enter into a contract, they assume not only the contractual
duties imposed by their agreement, they assume a duty to act in good faith.
Cuddy
Mountain Concrete v. Citadel Construction, Inc., 121 Idaho 220, 230,
824 P.2d 151, 161 (Ct.App. 1992). This premise applies not only to commercial
contracts, it also applies to other civil contracts including marriage
dissolution agreements.
The district court may modify provisions of a decree for the support
of the wife, "* * * and the court may, from time to time, modify its orders
in these respects." I.C. § 32-706; Jackson v. Jackson, 87 Idaho
330, 393 P.2d 28 (1964); "* * * but this authority to modify cannot be
extended to modification of an agreement of the parties; for only when
there has been a merger of the agreement into the decree itself does the
court have the authority to make such a modification, and any modification
is then of the court's order and not of the agreement. Bainbridge v.Bainbridge,
75 Idaho 13, 265 P.2d 662." Kimball v. Kimball, 83 Idaho 12, 15,
356 P.2d 919, 921 (1960).
Merger is the substitution of rights and duties under the judgment
or the decree for those under the agreement or cause of action sued upon.
The question as to what extent, if any, a merger has occurred, when a separation
agreement has been presented to the court in a divorce action, arises in
various situations. Bainbridge v. Bainbridge, 75 Idaho 13,
265 P.2d 662." Kimball v. KimballKimball v. Kimball, 83 Idaho 12,15, 356
P.2d 919, 921 (1960).
In revewing a Property Settlement Agreement, it is first necessary
to determine whether the parties and the Court intended a merger. If the
agreement is expressly set out in the decree, and the court orders that
it be performed, it is clear that a merger is intended. On the other hand,
the parties may intend only to have the validity of the agreement established,
and not to have it become a part of the decree enforceable as such.
Whether or not a merger is intended, the agreement may be incorporated
into the decree either expressly or by reference. If a merger is not intended,
the purpose of incorporation will be only to identify the agreement so
as to render its validity res judicata in any subsequent action based upon
it. If a merger is intended, the purpose of incorporation is, of
course, to make the agreement an operative part of the decree. * * *'"
Kimball
v. Kimball, 83 Idaho 12, 15, 356 P.2d 919, 921 (1960)