Maine Marital Domestic Separation and Property Settlement Agreement Minor Children Parties May have Joint Property or Debts effective Immediately

General Summary: Separation and Property Agreements may be entered into before a divorce is filed to be effective when signed. The parties are free to make a private agreement addressing issues of marital property division and spousal support.

Marital property is defined as all property acquired subsequent to the marriage and not excluded under the terms of Section 953-2. Property within the definiton of "marital property" may be excluded from Section 953 by a "valid agreement of the parties".

Once the agreement is incorporated into the decree it becomes a memorial of the court's intent and not the intent of the parties. This is a result of the court's duty to determine, in every instance, that the property settlement is fair and equitable based on the factors enumerated by M.R.S.A. 953. In fact, until the court acts, either through it's own efforts or by approving a settlement agreement presented by the parties, marital property remains marital property.

Statutes: Maine Revised Statutes
TITLE 19-A: DOMESTIC RELATIONS

Disposition of property: 1. Disposition. In a proceeding for a divorce, for legal separation or for disposition of property following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse the spouse's property and shall divide the marital property in proportions the court considers just after considering all relevant factors, including:

A. The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
B. The value of the property set apart to each spouse; and
C. The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live in the home for reasonable periods to the spouse having custody of the children. 2. Definition. For purposes of this section, "marital property" means all property acquired by either spouse subsequent to the marriage, except:

A. Property acquired by gift, bequest, devise or descent;
B. Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent;
C. Property acquired by a spouse after a decree of legal separation;
D. Property excluded by valid agreement of the parties; and
E. The increase in value of property acquired prior to the marriage and the increase in value of a spouse's nonmarital property as defined in paragraphs A to D.

(1) "Increase in value" includes:

(a) Appreciation resulting from market forces; and
(b) Appreciation resulting from reinvested income and capital gain unless either or both spouses had a substantial active role during the marriage in managing, preserving or improving the property. (2) "Increase in value" does not include:

(a) Appreciation resulting from the investment of marital funds or property in the nonmarital property;
(b) Appreciation resulting from marital labor; and
(c) Appreciation resulting from reinvested income and capital gain if either or both spouses had a substantial active role during the marriage in managing, preserving or improving the property.

3. Acquired subsequent to marriage. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2.

4. Disposition of marital property. If both parties to a divorce action also request the court in writing to order disposition of marital property acquired by either or both of the parties to the divorce prior to January 1, 1972, or nonmarital property owned by the parties to the divorce action, the court shall also order disposition in accordance with subsection 1.

5. Decree contents. If the final divorce decree disposes of real property, it must name the party or parties responsible for preparing and recording the decree of divorce or abstract of the decree and paying the recording fee after the clerk has prepared or approved the abstract. The decree may name different parties to be responsible for different parcels.

6. Nonowner spouse claims. Notwithstanding the actual notice provisions of Title 14,section 4455 or any other laws, a claim of a nonowner spouse to real estate as "marital property," as defined in this section, does not affect title to the real estate of the owner spouse until the nonowner spouse records in the appropriate registry of deeds either:

A. A copy of the divorce complaint as filed in court;
B. A clerk's certificate of the divorce complaint, as described in Title 14, section 4455, subsection 2; or
C. A decree or abstract of the decree as described in this section. This recording requirement applies to all divorce proceedings in this State or in any other jurisdiction.

7. Decree or abstract as deed. All rights acquired under former Title 19, section 721 or 723 on or before December 31, 1971 and all rights acquired under this section by a party in the real estate of the other party are effective against a person when the decree of divorce or an abstract of the decree is filed in the registry of deeds for the county or registry district where the real estate is situated. The abstract must contain the names of the parties, the date of the decree and the court that issued the decree. The failure of a party to record the decree or an abstract of the decree within a time period prescribed by former Title 19, section 725 does not affect the rights of that party as against the other party or the other party's heirs or devisees. The recording of the decree or abstract of the decree has the force and effect of a quitclaim deed releasing all interest in the real estate described in the decree or abstract of the decree, whether the interest is in fee or by statute.

8. Out-of-state divorce decrees. When a divorce has been granted out of the State, the plaintiff, or the plaintiff's attorney, shall cause a duly authenticated copy of the order to be recorded with the register of deeds in each of the counties where the real estate or any part of the real estate is situated. The appropriate recording fee must be paid prior to the recording.

9. Omitted property. If a final divorce decree fails to set apart or divide marital property over which the court had jurisdiction, the omitted property is deemed held by both parties as tenants in common. On the motion of either party, the court may set aside or divide the omitted property between the parties, as justice may require. § 953.

Case Law:

Once the "separation agreement" was incorporated into the divorce judgment, it became a part of the judgment of the divorce court. Torrey v. Torrey, 415 A.2d 1092, 1094 (Me. 1980). Under such circumstances, the language of the "separation agreement" is significant to the extent that it reveals the intention of the divorce court. Torrey v. Torrey, 415 A.2d at 1094. It is the divorce court that must, in every instance, determine that the property settlement is fair and equitable after considering all relevant factors. 19 M.R.S.A. § 953. Bagley v. Bagley, 415 A.2d 1080, 1083 (Me. 1980). Thus, it is the intent of the divorce court, rather than that of either of the parties, that is determinative. Torrey v. Torrey, 415 A.2d at 1094.

Although parties to a divorce may fashion a private settlement agreement addressing property division and spousal support, and the divorce court may incorporate this agreement into the divorce decree, only an incorporated agreement's provision not to increase alimony will survive despite subsequent events. Hale v. Hale, 604 A.2d 38, 41 (Me. 1992). In all other circumstances, the divorce court is empowered to "alter or amend a decree for spousal support or specific sum when it appears that justice requires it." 19-A M.R.S.A. § 951(4) (1998). Because the divorce decree reflects the court's consideration of all of the relevant statutory factors, see 19-A M.R.S.A. § 951 (1998), once a "separation agreement" is incorporated into the divorce decree, it is the intent of the divorce court, rather than that of the parties, that is determinative of the parties' obligations. Wardwell v. Wardwell, 458 A.2d 750, 752 (Me. 1983).

"Marital property" is defined in 19 M.R.S.A. § 953-2 as "property acquired by either spouse subsequent to the marriage," with several exceptions. [§ 953-1] requires the divorce court to divide the property, Grishman v. Grishman, Me., 407 A.2d 9, 11 (1979). Until the court makes the division, the property remains legally marital property, by the effect of M.R.S.A. §953, even if the parties have agreed to divide possession and use of the property.