Monday, November 3, 2008

What is an Agreement Incident to Divorce?

*and Why Should I Be Interested?

An Agreement Incident to Divorce (AID) is a great tool for people going through a divorce. It fits in well with one of the main reasons why many people choose to use Collaborative Law -- it helps protect their privacy. An AID is a document that is sometimes prepared in addition to a decree of divorce. In a traditional Texas divorce, the terms of the divorce are spelled out in detail in the decree of divorce. The AID can be used to supplement the decree. A decree of divorce is signed by the judge and filed with the public records in the court's file. An AID is signed by the parties, but not the judge, and is usually not filed with the court papers for public viewing.

An agreement incident to divorce is a contract signed by the parties. That means that it contains agreements that can be enforced like any other contract. Damages can be awarded for a breach of contract. A party can be ordered to specifically perform the terms of the agreement. Attorney's fees can be awarded to the party who lost something because the other party violated the agreement.

In a divorce case, an agreement incident to divorce is usually "incorporated by reference" into the decree of divorce. That means that the AID technically becomes part of the decree of divorce and may be enforced by contempt, which can be used both to compel compliance with the agreement and to punish violations of the agreement. In addition, attorney's fees can be awarded. If the decree/agreement is deemed too unclear or indefinite to be enforced, a court can issue an order to clarify the decree.

What is included in an agreement incident to divorce? Whatever the parties want to put in it can generally be included. Many people want all financial provisions included in the AID, and not in the decree of divorce. Some may want just some financial provisions in the AID. The topics can include income, investments, debts, tax issues, alimony, real estate, trusts, plans for disposing of assets, and on and on. Provisions for the children, including visitation and support can be included. Sometimes special needs for children are dealt with there. If child support is substantial, the parties may want it included in the AID, rather than the decree.

Many AIDs contain provisions that go beyond what a court can order. Generally speaking, a court cannot order support for children beyond the child's 18th birthday or when the child graduates from high school, whichever is later, but that can be done in an AID. In Texas, courts cannot usually order child support through college or order the payment of college expenses, if the child is over 18. However, in an AID, the parties can have an agreement for payments for the child's college, insurance, and even vehicle(s) after 18, and the agreement can be enforceable.

AIDs can also include very creative financial dealings that would not be available in a simple decree of divorce. Real estate transactions, alimony and other significant provisions can be spelled out in detail to benefit both parties. If one or both parties is involved in other litigation, the AID can deal with different contingencies that might arise. An AID provides a very flexible tool for reaching agreements.

Conclusion: Why use an agreement incident to divorce? For privacy, extra enforcement possibilities, creative solutions, clarity and flexibility. It is a device that works very well in Texas Collaborative Law divorces.

1 comment:

Andrew said...

This is really awesome. I have read out the whole blog with full interest and pointed out some valuable points about divorce agreement and divorce law. Please keep it up. I am anxiously looking for such new posts.

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