When we attorneys who practice family law send our clients proposed divorce pleadings for his/her review, we frequently hear the question: “Why are we asking the Court to ‘incorporate but not merge’ my marital settlement agreement into the Judgment of Divorce?” or “Why don’t we just incorporate it?” Here’s a simplified explanation.
The Process of Filing for Divorce in Maryland
Many times during a divorce, the parties are able to resolve their disputes. When this happens, the parties, with the assistance of the lawyers, will draft a settlement agreement. Once everyone has signed the agreement, the parties are contractually obligated to abide by its terms.
To obtain an official Judgment of Divorce (sometimes referred to as a divorce decree), one or both of the parties must file in Court and request an uncontested divorce hearing. The parties’ settlement agreement will be filed with the Court prior to (or sometimes at) the final divorce hearing. When this happens, the agreement is presented to the Court and essentially has to be approved by a Judge. Assuming the Judge decides that the agreement complies with the laws of the State of Maryland and that it is not unconscionably unfair, the Court and the parties will be bound to the agreement.
After the divorce hearing, the Court will issue a Judgment of Divorce which usually summarizes the terms of the agreement if it is a short, informal agreement, or the Judgment of Divorce states one of two things: (1) that the settlement agreement is “incorporated and merged” or (2) that the settlement agreement is “incorporated but not merged.”
Why Word Choice Matters in Divorce Language
Although the choice of language may seem insignificant or even redundant, the wording you choose can have a big impact when it comes time to enforcing the agreement if your ex fails to do what he/she is supposed to do under the agreement.
Most often, we ask the Court to “incorporate but not merge” an agreement into the Judgment of Divorce because this ensures that the client has the right to enforce the agreement as both a private contract between two people and to use the Court’s enforcement powers, if it were to become necessary. Here is an example to help you understand:
I represent Sally in her divorce from Sam. Sally and Sam have signed a marital settlement agreement. Although Maryland law doesn’t require parents to pay for a child’s college tuition, both Sally and Sam have agreed to contribute something to their son Seth’s tuition, if certain criteria are met. Specifically, the agreement reads: “Each of the parties shall pay $5,000 per semester towards Seth’s college tuition, so long as Seth is enrolled as a full-time student and maintains a GPA of at least 3.5 in all of his courses for that semester.”
Fast forward 10 years and little Seth is now a full-time student at the University of Maryland with a GPA of 3.8 in all of his courses. Sally has paid her $5,000 for the semester, but Sam now refuses to pay.
If Sally and Sam’s agreement was incorporated and merged into their Judgment of Absolute Divorce, the agreement essentially becomes the Judgment of Absolute Divorce and ceases to exist as an agreement itself. The reason why this could be disastrous for Sally (not to mention poor Seth) is that, if you want to enforce a Court Order (such as a Judgment of Divorce), you have to go back to the Court and file a Motion explaining what the other party has done or failed to do in violation of the Order, asking that the Court hold them in contempt of the Court Order. In this example, if Sally files for contempt and asks the Court to force Sam to pay the tuition, the Court will NOT be able to do so because it cannot use powers that exceed what it is allowed to do by law. Because there is no law or statute that grants the Court the authority to order a parent to pay college costs, there is nothing that can be done. The provision is invalid and unenforceable.
If Sally wanted to ensure that Sam followed through with what he agreed to, she should have asked for the agreement to be incorporated but not merged into the Judgment of Divorce. This would allow the Court to retain jurisdiction over the enforcement of things such as child support, while allowing the parties to enforce items like the college tuition provision as a civil matter.
Because each case is different, it is important to understand the implications of every scenario for your case. This means you should have a knowledgeable attorney representing your interests—learn how the attorneys at Andalman & Flynn can provide dependable legal representation.
Divorce Attorneys in Montgomery County, MD
At any time during the court process, you and your spouse can reach an out-of-court agreement before the judge or master decides your case. However, by filing in court, you are obligated to comply with the deadlines set by the court, even if you do not intend for your case to go to trial. If you are interested in discussing options for how to handle your separation and divorce, including alternative dispute resolution, please contact us regarding our Family Law services and to schedule a consultation.
To contact an experienced Andalman & Flynn lawyer, please give us a call at (301) 563-6685.
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