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Merger in Divorce

Merger in Divorce

The purpose of a divorce Decree is to outline the respective rights and obligations of two parties post-divorce. Thus a Decree will provide for such things as division of property and debt as well as describe any support obligations whether those be in the nature of spousal support or child support. There are times when the parties to a divorce action will reach independent agreements either before, during, or after the decree is issued. The purpose of this article is to shed some light onto how these independent agreements are treated.

Often times these independent agreement are titled as marital separation agreements. These agreements define some or all of the rights of the parties. If these agreements are not expressly "merged" into the Decree of Divorce then these agreements will be seen as independent contracts. What this means is that if there is later litigation regarding the non-merged agreement then general contract principles will apply. These contract principles will be used to interpret the provisions and contract principles will be available to enforce the provisions. Agreements within a decree or "merged" into a decree of divorce are not solely limited to interpretation and enforcement under general contract principles. Rather, these agreements are governed by specific statutes which govern divorce proceedings. In Nevada these are found under Nevada Revised Statutes 125 which governs dissolution of marriage, support obligations, and custody rules.

Thus, Divorce Decrees and agreements merged into the Decree of Divorce have the benefit of being interpreted and governed by NRS 125. This is important because there are many times when contract principles alone will not be sufficient to provide the remedy one spouse wishes post-divorce. A common example would be that of a motion to modify alimony. There are no contract principles that provide expressly for a modification of alimony. However, there is statutory authority directly on point at NRS 125.150 which expressly provides that an obligor can motion the court for a modification of alimony based on a change in his or her income. This statutory benefit would not be available had the alimony agreement not be found in the decree itself or in an agreement merged into the decree of divorce. Keep in mind that this sword cuts both ways. Once an agreement is deemed to have merged into the decree then such agreement will be solely governed by the relevant dissolution of marriage statutes. Thus, following merger, the merged agreement will no longer be interpreted or governed by contract principles.

Now that we understand a bit about the significance of having terms provided for specifically in the decree of divorce itself or in an agreement merged into the decree of divorce we next need to understand when a separate agreement will be deemed "merged" into the decree. There have been several prominent cases on this issue here in Nevada. In the Ballin v. Ballin 78 Nev. 224 (1962) case the court had to determine if the parties' prior agreement which settled maintenance and property rights should be merged into the decree. If this agreement was to be merged then alimony would be modifiable as the husband requested. The agreement between the parties said that that if divorce proceedings were initiated, that the agreement and its provision would be incorporated by reference and made a part of any decree granted. However, the agreement went on to say that "notwithstanding the incorporation of this agreement in any such decree or judgment, this agreement shall not be merged in such decree or judgment, but shall survive the same and shall be binding and conclusive on the parties hereto, their heirs, executors, administrators and assigns for all time" Id. At 226-27. This language seems somewhat contradictory in nature in that it seeks to incorporate by reference but then at the same time explicitly states that it shall not be merged into the decree. The district court therein found the agreement not to merge based on this language and the Nevada Supreme Court agreed. What exact language the court found compelling cannot be deciphered though there were multiple terms expressing the non-merger intent. The court took note of the fact that the parties specified that the agreement was not to be merged, but would survive, that the agreement could not be modified absent further written agreement and that the agreement would survive the decree. Based on the totality of this language the Supreme Court of Nevada found no merger. Thus alimony not modifiable under NRS 125.170

In another case which followed and cited to Ballin above, the court again failed to find merger. This is the case of Jones v. Jones 86 Nev 879, 478 P.2d 148 (1970). In this case the parties entered into a marital separation agreement prior to divorce. Within that separation agreement it was specifically stated that such agreement was not to be merged into the decree but was to survive and be enforced as a contract binding for all time. At the same time this marital separation agreement also stated that in the event either party sued for divorce that this marital separation agreement could be offered in evidence, and if accepted by the court incorporated by reference into the Decree. Following this language it went on to say that notwithstanding this "incorporation" the agreement would not merge and would survive. The Nevada Supreme Court held that the agreement was not merged and thus such agreement was a separate contract apart from the divorce decree. As such, the court had no grounds to modify alimony as the husband had requested. Grounds for modification of alimony rest in the statutes governing dissolution of marriage. Given the fact that this agreement was not-merged no relief could be had within those statutes. Thus the court's hands were tied as to any alimony modification. The court held that while the agreement is not or would not be binding on the court in the divorce proceedings such agreement would be binding and control in any post-divorce matter such as the one before it.

Thus again it seems that the language to include in any marital separation agreement if you wish for such agreement to remain independent of the decree is that such agreement will not merge and will survive the decree of divorce. This language in and of itself should be sufficient to overcome any other language which could be read as inconsistent with this language. However, be advised that the decree of divorce also needs to direct survival. It may well not be sufficient for the marital separation agreement to indicate as much. When we compare the Ballin case with the Day v. Day, 80 Nev. 386 case we can see why this matters. In the Ballin case which was heard prior to the Day decision the court specifically emphasized the fact that the Decree itself stated that the agreement would survive the Decree of Divorce. In the Day case the court found that there would be a merger despite the language of the marital separation agreement stating that it would not be merged into the Decree. The Supreme Court of Nevada found that since the decree did not expressly state that the agreement would "survive" the decree that the agreement in fact would merge given the other language of the decree directing approval, adoption, and confirmation of the agreement by the decree. As Counsel we thus know that we need to indicate in our marital separation agreement specifically whether such agreement will or will not be merged and then we need to take the second step and in our Decree indicate whether that marital separation agreement will survive the Decree or not.

Categories: Family Law