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Am Jur 2d - Divorce and Separation § 3

I. Divorce and Separation Proceedings, Generally, A. Nature and Validity, 1. In General, § 3 - Stipulations and agreements

While settlement is an encouraged mode of resolving cases generally, the use of consensual agreements to resolve marital controversies is particularly favored in divorce matters,[1] and there is a strong public policy of encouraging settlement of divorce cases.[2] Settlement agreements in marital dissolution actions generally are upheld, to the extent they comply with the equitable precepts embodied in the applicable statutes.[3]

In a divorce action, a settlement agreement or stipulation, if accepted by the court, becomes the judgment of the court itself,[4] or may be incorporated into the final decree of divorce.[5] Generally, the court has the discretion to approve or reject the agreement, in whole or in part,[6] and are not bound by an agreement reached by the parties to a divorce action.[7] However, in some states a separation agreement, under certain conditions, is binding on the trial court, and the terms of the separation agreement are incorporated into a judgment and decree of dissolution.[8] While a court may reject all or part of a marital dissolution stipulation, generally, it cannot, by judicial fiat, impose conditions on the parties to which they did not stipulate and thereby deprive the parties of their day in court.[9] The parties to a divorce action may, generally speaking, stipulate to a provision in a divorce judgment even if the court would not otherwise have the statutory authority to order that provision absent the parties' consent.[10] A court cannot accept and incorporate into a divorce decree an incomplete and unenforceable settlement agreement.[11] Even if part of a separation agreement is declared void, the separation agreement still retains vitality as a basis for dissolution of the marriage.[12]

Practice Tip:

Courts in divorce proceedings may act upon and enforce oral agreements and stipulations entered into in open court and spread upon the record by parties represented by able counsel.[13] Open-court stipulations are judicially favored, and will not be set aside in a divorce action, absent fraud, overreaching, mistake, duress, or unconscionability.[14]

When parties agree to dissolve their marriage under certain terms, that stipulation is accorded the sanctity of a binding contract.[15] A settlement agreement that has been incorporated into a final divorce judgment may be enforced either as a judgment or an independent contract.[16] Vested contractual rights—whether incorporated by, memorialized in, or merged into a final divorce decree—generally cannot be judicially modified or terminated at the unilateral request of a contract party unless the agreement expressly authorizes such relief.[17]

Practice Tip:

If the divorce court rejects any portion of a divorce settlement agreement, the parties must be afforded an opportunity to be heard on those matters that have returned to disputed status.[18]


Stipulations in a divorce are considered in the same manner as a typical contract between two parties. Zurosky v. Shaffer, 763 S.E.2d 755 (N.C. Ct. App. 2014) .

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1   Weishaus v. Weishaus, 180 N.J. 131, 849 A.2d 171 (2004) .

2   Lawrence v. Lawrence, 276 Wis. 2d 403, 2004 WI App 170, 687 N.W.2d 748 (Ct. App. 2004) .

3   Weishaus v. Weishaus, 180 N.J. 131, 849 A.2d 171 (2004) .

4   Arnold v. Arnold, 282 Ga. 246, 647 S.E.2d 68 (2007) ; Hottenroth v. Hetsko, 298 Wis. 2d 200, 2006 WI App 249, 727 N.W.2d 38 (Ct. App. 2006) , review denied, 2007 WI 59, 299 Wis. 2d 325, 731 N.W.2d 636 (2007) .
 Settlement agreements entered into by divorcing spouses and judicially approved become a part of the decree and enforceable as such as though entered by the court following contested proceedings. West v. West, 891 So. 2d 203 (Miss. 2004) .

5   Gaffney v. Gaffney, 45 Va. App. 655, 613 S.E.2d 471 (2005) .

6   Arnold v. Arnold, 282 Ga. 246, 647 S.E.2d 68 (2007) .
 In deciding whether to approve a stipulation agreed to by married persons in the context of a divorce, a court must exercise its independent judgment to determine whether a stipulation is, on the facts of the case in question, appropriate. In re Marriage of Rettke, 696 N.W.2d 846 (Minn. Ct. App. 2005) .

7   Brandt v. Brandt, 888 So. 2d 510 (Ala. Civ. App. 2004) ; Dewbrew v. Dewbrew, 849 N.E.2d 636 (Ind. Ct. App. 2006) .
 In fashioning a divorce judgment based on the parties' agreement, the court is not limited to the ministerial task of transcribing the exact language of the agreement, but, pursuant to its parens patriae role, should enter a judgment that is fair, reasonable, and responsible. Webb v. Webb, 2005 ME 91, 878 A.2d 522 (Me. 2005) .

8   In re Marriage of Rolfes, 187 S.W.3d 355 (Mo. Ct. App. S.D. 2006) ; In re Marriage of Joyner, 196 S.W.3d 883 (Tex. App. Texarkana 2006) , review denied, (Dec. 1, 2006).
 Generally, settlements in domestic cases are binding on the court unless unconscionable. Bevins v. Gettman, 13 Neb. App. 555, 697 N.W.2d 698 (2005) .

9   Kielley v. Kielley, 674 N.W.2d 770 (Minn. Ct. App. 2004) .
 A trial judge should not reject a settlement agreement in a marital dissolution action just because the judge believes he or she could draft a better one. Beaman v. Beaman, 844 N.E.2d 525 (Ind. Ct. App. 2006) .

10   Lawrence v. Lawrence, 276 Wis. 2d 403, 2004 WI App 170, 687 N.W.2d 748 (Ct. App. 2004) .

11   Ciraldo v. Ciraldo, 280 Ga. 602, 631 S.E.2d 640 (2006) .

12   P.B. v. L.B., 19 Misc. 3d 186, 855 N.Y.S.2d 836 (Sup 2008) .

13   Stelts v. Stelts, 126 S.W.3d 499 (Mo. Ct. App. S.D. 2004) .

14   Tarone v. Tarone, 25 A.D.3d 779, 809 N.Y.S.2d 150 (2d Dep't 2006) .

15   Wolosoff v. Wolosoff, 91 Conn. App. 374, 880 A.2d 977 (2005) ; Gatfield v. Gatfield, 682 N.W.2d 632 (Minn. Ct. App. 2004) ; Waters v. Waters, 300 Wis. 2d 224, 2007 WI App 40, 730 N.W.2d 655 (Ct. App. 2007) .

16   Bornemann v. Bornemann, 175 Md. App. 716, 931 A.2d 1154 (2007) .

17   Baldwin v. Baldwin, 44 Va. App. 93, 603 S.E.2d 172 (2004) .

18   Lowd v. Dimoulas, 2005 ME 19, 866 A.2d 867 (Me. 2005) .

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