A separation agreement that was never approved by a judge or written into a divorce decree is still enforceable as an ordinary contract.
Court Approval Is Not What Makes It Binding
In Brown v. Farkas, 195 Ga. 653 (1943), spouses living apart settled the wife’s alimony claim by contract while her divorce action was pending. The Georgia Supreme Court held they “could enter into a valid and enforceable contract settling the issue as to alimony,” and enforced it.
The Georgia Supreme Court revisited that history in Guthrie v. Guthrie, 277 Ga. 700 (2004), describing cases in which parties signed a settlement agreement during a pending divorce, never presented it to the trial court, and did not have it incorporated into the final judgment. “Despite the lack of review and approval by the divorce court, this Court enforced the contracts, which did not conflict with the final judgments, under the ordinary rules of contract construction.”
Which Set of Rules Applies
The distinction Guthrie draws is worth keeping straight. When an agreement is put before a divorce court, it may become “the judgment of the divorce court itself,” and the judge has “discretion to approve or reject the agreement, in whole or in part.”
But “the interpretation of a settlement agreement that a party seeks to enforce outside of the parameters of the divorce proceeding is strictly governed by the rules of contract construction.” No judicial discretion, no second look at fairness. Just the words on the page.
The Practical Consequence
An unincorporated agreement is enforced like a contract, which means a breach is a lawsuit for breach of contract. That is a different and often slower path than the contempt power a court holds over its own decree.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!