Section 7.4 Formation and the Writing Requirement

• Library: Family Law Deskbook and 2014 Supp

A. (§7.4) Formation and the Writing Requirement

Section 452.325.1, RSMo 2000, requires that separation agreements be in writing. The Western District of the Court of Appeals had traditionally held fast to this statutory requirement. See:

Turpin v. Turpin, 570 S.W.2d 831, 835 (Mo. App. W.D. 1978) (“The terms of the statute are plain and unambiguous that the separation agreement must be in writing and there is no room or need for judicial interpretation here.”)

Potter v. Potter, 621 S.W.2d 123 (Mo. App. W.D. 1981)

Swank v. Swank, 865 S.W.2d 841, 844[1] (Mo. App. W.D. 1993)

But seeCarter v. Carter, 869 S.W.2d 822, 829 (Mo. App. W.D. 1994) (“[O]ral agreements as to property division are binding when entered into in open court by parties represented by counsel and the agreement is ‘spread upon the record.’” The parties’ oral settlement referenced an exhibit listing various items of marital property.).

The pressure of the courtroom sometimes results in settlements that warrant an immediate reading into the record in lieu of returning to court following an afternoon at the word processor and an exchange of drafts and signatures by the parties. These last-minute deals hold potential for peril and are not preferable to a settlement before entering the courthouse. Yet the practice will continue, and counsel forging ahead should ensure that a...