Settlement (Part 2)

Making a deal with your spouse

Physical custodial arrangement: everything must be spelled out in detail. Do not assume any good faith will exist — if it does, great, but do not bet your and your kids' future on it. Hand-shakes mean nothing between divorcing spouses. Specify who picks up and drops off children, the specific times, notification deadlines if someone is late, telephone contact, etc.

Joint parenting issues: specify the duties and obligation of each parent as to the children's health care, education, religious training, and extracurricular activities. Typically, if one parent is awarded primary custody, that parent at a minimum has a duty to consult and confer with the other regarding significant issues in the children's lives. Of course, if you have agreed on joint legal custody, greater cooperation is required. In either case, it is not enough to have these matters covered summarily in a few simple sentences. To be enforceable, the agreement must be sufficiently specific for a court to be able to hold the non-complying party in contempt. This means that a judge must be able determine precisely what the non-complying ex-spouse agreed to do. Normally, such detail requires at least several paragraphs.

Be prepared! In virtually all states a panoply of legislative and administrative provisions automatically is triggered when a child support order is entered. Many state and federal laws assure that moms receive financial contribution from fathers. However, the legislatures have shown no corresponding interest in assuring that dads have access to their kids. Therefore, if you are not being awarded primary custody, it is up to you to fastidiously scrutinize the provisions of your settlement agreement to assure it is free from gaps and ambiguities.

When is the deal binding?

"If my wife and I do come to terms," clients commonly ask, "when is the deal binding?" "When is she locked in?" First, oral agreements regarding these issues are almost never enforceable. Second, a court may, under certain circumstances, even refuse to enforce a written settlement agreement.

Here is why: in contract law, almost any agreement between two people is enforceable, assuming it meets the legal requirements of a "contract." Courts allow rational people to make all kinds of bargains and normally will not inquire about the relative worth of what is being exchanged between the parties. Courts commonly consider marriage as a type of contract and apply the principles of contract law, where necessary, to determine the rights and obligations of parties. However, courts also recognize that marriage is a special type of contract, where agreement may be driven more by passion than by hard-headed calculations. In other words, the law understands that matters of the heart do not usually lend themselves to rational decision-making. Therefore, courts have historically viewed with suspicion deals made between spouses, whether it is a pre-nuptial agreement (prior to marriage) or a settlement agreement (prior to divorce). In both cases, courts take an interest in assuring fundamental fairness. Pre-nuptial agreements, in particular, are legendary for their failure rate. While settlement agreements are subject to different rules, they, too, are often set aside. The most common basis for doing is "unconscionability"– where a Court concludes that an agreement is grossly unfair (it may be said to "shock the conscience of a judge"). Courts are especially solicitous when faced with custody settlements. Remember that a judge's task is to create an arrangement that is good for the kids, not only for the parents.

Will the judge know she made this deal and backed out?

A judge may take the broken agreement into account if you file a motion to enforce settlement. Even if the judge rejects your motion, you may still argue that you are entitled to the award of attorney's fees. However, the agreement will normally not be accepted as evidence of what your spouse really believes is good for your kids. For public policy reasons, at trial courts do not admit into evidence settlement discussions between the parties. The fear is that people would not pursue settlement if what they say is repeated during trial. In short, such evidence may indeed be presented to the judge but the judge may only consider it for certain permissible purposes (e.g. attorney fees, enforceability).

This online custody guide is adapted with permission from "Civil War: A Dad's Guide to Custody" (266 pages, softcover) - available in our online store.