CAMERON V. CAMERON
ABROGATION OF MARITAL SETTLEMENT AGREEMENT
2007-SC-000105-DG
PUBLISHED: AFFIRMING
CUNNINGHAM PRESIDING
COUNTY: NICHOLAS
DATE RENDERED: 9/18/2008
Ex-Husband appealed TC’s Order that separation agreement was not abrogated during period of alleged reconciliation and that agreement was not unconscionable.
CAMERON V. CAMERON
ABROGATION OF MARITAL SETTLEMENT AGREEMENT
2007-SC-000105-DG
PUBLISHED: AFFIRMING
CUNNINGHAM PRESIDING
COUNTY: NICHOLAS
DATE RENDERED: 9/18/2008
Ex-Husband appealed TC’s Order that separation agreement was not abrogated during period of alleged reconciliation and that agreement was not unconscionable.
FACTS:
Ex-Husband and Ex-Wife were married twice, first in 1988. They lived on a large farm of
approximately 1,200 acres which was managed by Ex-Husband, but owned by his father. Parties divorced in 1998 but property division agreement was never reached. Ex-Husband remarried and divorced. Ex-Husband’s father gifted several farms to him during this time. In 2002, the parties reconciled and remarried and lived together on the real estate gifted to Ex-Husband by his father. Nine months later, Ex-Husband filed for second divorce. A month later, Ex-Husband, who was represented by an attorney, contacted Ex-Wife, who was not represented by an attorney, about the prospects of once again reconciling. Though both parties were serious about the reconciliation attempt, Ex-Wife insisted upon the parties attending marriage counseling. Both parties signed a document entitled “Separation Agreement,” which provided that the parties would equally divide all property, whether marital or nonmarital. However, it did not provide for either maintenance or child support. During the attempt toward reconciliation, the parties did not move in together. They spent time together during weekends and took two trips to Mexico together. Several months later, Ex-Wife filed her own divorce action against Ex-Husband. Ex-Husband moved that the separation agreement be set aside because they had reconciled subsequent to the making of it, as well as claiming that it was unconscionable. TC held that the separation agreement was enforceable as not being abrogated by reconciliation nor as being unconscionable.
ANALYSIS:
If there was reconciliation between the parties, the effect of the reconciliation depends on whether the agreement was executed or merely executory. If the agreement had been properly executed, reconciliation does not abrogate the agreement unless the parties intended it to do so. If there is an agreement yet to be executed, as with these parties’ agreement, reconciliation of the spouses and a presumption of cohabitation of the parties nullifies the agreement. SC found no abuse of discretion in TC’s finding that reconciliation was not accomplished between these parties, and there is no bright line rule for making such a finding absent a dismissal of a pending divorce or an express rescission of the agreement. TC should consider at least the following factors in determining whether reconciliation has (1) whether the parties have resumed residing with each other; (2) the nature in which they hold their personal property, including bank accounts; (3) their failure to carry out other executory provisions of the contract; (4) activities of the parties in which normally only married couples participate; and (5) whether the parties attended marriage counseling. SC noted that a guiding light might be that reconciliation occurs where, from all appearances and for a substantial period of time, it seems purely an oversight that the agreement has not been rescinded or the divorce action dismissed.
SC also found no clear error in TC’s finding that agreement was not unconscionable or “manifestly unfair or inequitable.” SC further noted that burden of proof in challenging the agreement was upon Ex-Husband. The separation agreement was prepared by Ex-Husband’s lawyer and signed by both parties, though Ex-Wife had no attorney. Though Ex-Husband divested himself of half his nonmarital property, neither divorce between the parties provided for maintenance or child support. Thus, the agreement was not lopsided.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.
