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FS-On and Off Again Reconciles Can Create Agreement Disasters
Jan L. Warner & Jan Collins

Question: My wife and I went through a bitter separation two years ago. After counseling, we negotiated a final financial settlement agreement. Our lawyers prepared the agreement that called for us to divide our property and for me to pay her alimony. We went before a judge who "blessed" the agreement. My wife gave up her stock in my electrical business and stopped working there; I deeded the house to her and began paying alimony.

Then we starting dating again, and we got back together on and off for about six weeks before we decided for sure that the marriage would not work. During the time we were together, I did not pay her alimony because I was supporting her. We are now separated again and plan on getting a divorce this time. Since the agreement, I acquired more equipment for my business, and since we separated again, she has been diagnosed with serious health problems. Her health insurance with my company is running out -- unless our reconciliation started the clock again. Meanwhile, I have met someone else, and my lawyer has thrown up his hands. My question is: Will we have to redo the agreement and go back to court? Or can we just use the old agreement?

Neither my wife nor I want to spend any more money on lawyers if we can avoid it.

Answer: We don't think you or your wife will be able to avoid lawyers given the very complex facts you and she have quite unwittingly created. The specific answer to all or part of your question will depend on the law of your state of residence and the way your agreement was worded -- whether by you or by a judge.
Because reconciliation is always encouraged by courts based upon the duty to preserve the sanctity of marriage, judges generally will make every effort to not dampen the fires of reconciliation.

That said, the question remains as to whether you and your wife in fact reconciled your differences. The definition of "reconciliation" for legal purposes depends upon the facts of each case. For example, a few acts of sexual intercourse have been found by a court to be an "attempt" at reconciliation, but not an actual reconciliation.

Other issues will deal with your agreement itself because there is a legal difference between an agreement with "executory" language -- that is, acts that are "to be performed" in the future -- and an agreement that has been "executed" -- that is, transfers of assets that have actually been made.

If you and your wife are found to have reconciled, the general rule is that 1) the "executory" (unperformed) provisions of your property settlement agreement will be voided by your reconciliation -- unless the wording of the agreement provides otherwise, and 2) the "executed" (performed) provisions will not be affected by your reconciliation. In your case, that appears to mean that should you and your wife be deemed to have reconciled, the transfers of stock and real estate will be final and will survive your reconciliation.

The questions of alimony and health insurance, however, are another story that depends on the wording of the agreement and your state law. While reconciliation generally voids an unperformed obligation to pay alimony, a lot depends on the facts. And since your wife is having health problems, unless there is a disqualification that prevents her from receiving support, it should continue. And, for as long as you are married, you may be responsible for her medical expenses under the "doctrine of necessaries."

Separation agreements may contain language that automatically deals with the issues you raise. Since significant economic, inheritance and other rights may be affected by how these matters are resolved, it is wise to get your questions answered by competent legal professionals.

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