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with terms different from those agreed to by the spouses, then it
is the decree that fixes the right of the spouses, and, under the
rationale of Harris v. Commissioner, supra, any subsequent claim
by a spouse is founded on that decree. Estate of Fenton v.
Commissioner, supra at 272. The fact that a property settlement
agreement is incorporated into the divorce decree is not
determinative in ascertaining whether the decree is the operative
element of a claim. Id.
Petitioner argues that the claim of decedent's children is
based upon the final judgment because the 1984 PSA was
incorporated into it. Petitioner notes that, where a marriage
settlement agreement3 is incorporated into a divorce decree, the
Court of Appeals for the Ninth Circuit has stated: "A marriage
settlement agreement loses its status as an independent contract
when it is incorporated into a final divorce decree." Spirtos v.
Moreno, 56 F.3d 1007, 1008 (9th Cir. 1995). Because the 1984 PSA
was incorporated into the final judgment, under California law,
the parties can only enforce the terms of the agreement through
actions on the judgment, and not by actions on the 1984 PSA. See
Hough v. Hough, 160 P.2d 15 (Cal. 1945); In re Marriage of
Umphrey, 267 Cal. Rptr. 218 (Ct. App. 1990). Therefore,
3For the purposes of this opinion, the terms "marriage
settlement agreement" and "property settlement agreement" are
used interchangeably.
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