Facts: Husband and Wife divorced after 25 years of marriage.

Wife’s complaint for divorce was dormant for two years while they tried to reconcile. Acting on a suggestion by their marriage therapist, Husband drafted and gave Wife a handwritten reconciliation agreement in an effort to salvage the marriage. The document read:

To Whom it May Concern:

It being [my] sole desire to reconcile my marriage with [Wife] and in consideration of her reconciling with me (also dropping the divorce lawsuit currently filed), I agree that if I cheat on her anytime in the future, I will give up my interest in our marital residence at [address]. In other words, that residence would then become her separate property.

Any dispute about what constitutes cheating will be determined by a court of law.

If [Wife] chooses to divorce me for any other reason other than my future infidelity, this agreement does not come into effect/apply.

Signed, [Husband]

Thereafter, the parties engaged in a quasi-marital relationship during which Husband primarily lived in a second home but occasionally stayed with Wife at the marital residence.

Although Wife did not take affirmative action to “drop” or dismiss her divorce complaint, the trial court, acting on its own, dismissed the divorce action for failure to prosecute 1 ½ years after Husband’s handwritten contract.

The following month, Wife learned that Husband was seeing another woman. The month after that, Wife moved to set aside the order of dismissal and reinstate her complaint for divorce, which was reinstated by an agreed order.

As for the reconciliation agreement, the trial court found that when Husband presented it to Wife during marital counseling, Wife said she would not sign the document but would “take it home and think about it.” She never signed it. Wife also never acted on the writing, i.e., she did not voluntarily dismiss her divorce complaint. Instead, the complaint was dismissed by the trial court for failure to prosecute. The trial court noted that if Wife believed the marital residence was her separate property, she would have “started paying the house payment, the landscaping payment, all those things” after the divorce was reinstated, which she did not do. The trial court held the marital residence was marital property, not Wife’s separate property.

Wife appealed, arguing the reconciliation agreement is a unilateral contract and that she rendered acceptance by stopping the pursuit of her divorce action and letting it be dismissed.

On Appeal: The Court of Appeals affirmed the trial court.

Reconciliation agreements are contracts and should be construed using the rules of construction generally applicable to contracts. The essential elements of a unilateral contract are an offer that calls for acceptance by performance of an act, rather than by a return promise, and performance by the offeree of all the required acts.

The Court agreed with the trial court’s decision:

We find that the writing at issue contains the components of what could become an enforceable unilateral contract. In order to accept Husband’s offer and effectuate the unilateral contract, Wife did not need to sign the writing but was instead required to perform the acts specified in the writing.

Husband’s offer required that Wife take two separate actions. First, it required that Wife reconcile with Husband, and it is disputed whether the parties reconciled. Second, the writing required that Wife “drop[] the divorce lawsuit currently filed.” As the trial court correctly found, Wife did not affirmatively “drop” the lawsuit. To be fair, Wife did not actively prosecute the case while the parties were attempting to reconcile, which is evident from the trial court’s sua sponte dismissal of the complaint for failure to prosecute. However, Wife’s failure to pursue the divorce during this period was not equivalent to her taking the initiative of “dropping the divorce lawsuit.” Furthermore, as the trial court correctly noted, after the divorce action was reinstated, Wife generally took no action indicative of one who is claiming exclusive ownership of real property, such as paying the mortgage, the taxes, or the operating expenses on the home.

The Court affirmed the trial court’s judgment that the marital residence was marital property.

Source: Burks v. Burks (Tennessee Court of Appeals, Eastern Section, March 7, 2024).

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