theother said:
What is the name of your state? CA
Is a marriage settlement agreement that was signed by both parties but never ultimately incorporated into the final dissolution order enforceable?
My response:
Such agreements are not "judgments" and are treated and dealt with like any other contract. In other words, you must obtain a judgment in your favor by reducing the breach to a judgment. Had it been incorporated into the original judgment, any "breach" could have been immediately dealt with via "Order to Show Cause." An unincorporated MSA must first be proved, and won, just like any other contract. It's a bad move not to incorporate an MSA into a judgment of dissolution.
Spousal support orders based on the parties' agreement or stipulation are deemed "law-imposed" and made under the court's authority to award spousal support; they are thus enforceable and modifiable/terminable in the same manner as any court order for spousal support except to the extent the parties have specifically agreed in writing or orally in open court that spousal support is not subject to modification or termination. [Ca Fam §§ 3590, 3651(d)]
Likewise, unless otherwise specifically agreed by the parties in writing or orally in open court, private marital settlement agreements providing for spousal support are subject to court-ordered modification or termination even if not reduced to a court order or judgment. [Ca Fam §§ 3591(a) & (c), 3651(d); Marriage of Maytag (1994) 26 Cal.App.4th 1711, 1715-1716, 32 Cal.Rptr.2d 334, 336-337--court's jurisdiction to modify/terminate not limited to agreements approved by court or incorporated into judgment or order]
No portion of a settlement agreement is enforceable as a judgment unless entered as a judgment (as under Ca Civ Pro § 664.6) or unless the agreement has been incorporated and merged in the judgment. [Cf. Ca Fam § 2128(b)--"Nothing in this chapter (Ca Fam § 2120 et seq.--relief from judgment) changes existing law with respect to contract remedies where the contract has not been merged or incorporated into a judgment" (emphasis and parentheses added)]
Those provisions that are merged in the judgment become an order of the court; the "merged" agreement is superseded by the judgment and ceases to be of independent legal significance. As a result, the agreement can then be enforced only as a judgment (by contempt, execution, etc.) . . . it is no longer enforceable by contract remedies and, unless otherwise provided by the judgment, any warranties are extinguished by the judgment. [Marriage of Umphrey (1990) 218 Cal.App.3d 647, 656, 267 Cal.Rptr. 218, 222; Marriage of Jones (1987) 195 Cal.App.3d 1097, 1104, 241 Cal.Rptr. 231, 235; Marriage of Lane, supra, 165 Cal.App.3d at 1147, 211 Cal.Rptr. at 265; and see, e.g., Hough v. Hough (1945) 26 Cal.2d 605, 609-610, 160 P.2d 15, 17--agreement not merged, contempt not available; Tytel v. Tytel (1982) 131 Cal.App.3d 119, 127-128, 182 Cal.Rptr. 238, 242-243--New York settlement agreement not merged into New York or California judgments and thus enforceable by independent action on contract]
IAAL
