Divorce Paperwork Matters: “Incorporated and Merged”

There are two parts to divorce paperwork. The first is the divorce agreement, which is what the two spouses create (and/or the court creates if the spouses cannot come to terms). The second is the judgment of divorce a.k.a. the divorce decree that a judge signs that actually ends a marriage and puts the court’s authority behind the divorce agreement.

The judgment of divorce sometimes contains a summary of the divorce agreement, but only when the agreement is relatively short, simple, and non-contentious. More often, the court will combine the divorce agreement and the judgment of divorce in one of two similar-sounding, but critically different ways.

“Incorporated but not Merged”
The first way the divorce paperwork can be combined is that they can be “incorporated, but not merged.” This means that while the divorce decree is considered a court order (between the judge, one ex, and the other ex), the divorce agreement is considered a contract (between one ex and the other, without the judge involved). The divorce decree, at that point, “incorporates” the divorce agreement by saying “And the court orders that each spouse abide by this contract over here.”

“Incorporated and Merged”
The second way the two documents can be combined is that they can be “incorporated and merged.” In legal terms, the merger between a divorce agreement and the divorce decree means that the divorce agreement is no longer considered a contract, and is not subject to the laws that govern how contracts are treated by the court.  Instead, it is subject to the laws that govern court orders. There are two significant effects of that change.

First, the laws of Michigan don’t give the family court jurisdiction over much of what we consider normal parts of everyday life. For example, if your divorce agreement is that each parent will pay half of the child’s college tuition each quarter, and your ex does not, the Michigan family court has no authority to order your ex to do so. In this case, an “incorporated and merged” agreement renders that clause of the agreement legally unenforceable and thus invalid.

The second difference, we’re going to cover in our next post — it involves just how long you can wait to ask the court to alter or enforce the divorce arrangement.

A Difference in Enforcement
If you have “Incorporated and Merged” divorce paperwork, enforcing the divorce agreement means you have to go to the court and prove that your ex is violating the court order (your divorce decree). Then the court has to establish that the clause of the court order is valid and enforceable, and if it is, the court will then file a charge of Contempt of Court against the violating party.

If your agreement is “Incorporated but not Merged” with the decree, you would go through the same process above for those elements of the divorce that are established by the court in the divorce decree (generally, spousal and child support and custody arrangements). For those elements established by the divorce agreement (generally, everything else), you would instead file a separate motion for breach of contract, which doesn’t have to go through Michigan’s family law system.  That said, there are reasons to choose either path — we’ll talk about the biggest one in our next post.

Whew! Who knew divorce paperwork was so complicated? (Besides every family court judge, court officer, and divorce attorney in Michigan, that is.)