Common myths about divorce: Are divorce settlement agreements prior to a divorce filing enforceable?
This guide discusses the validity of divorce settlement agreements reached prior to filing a divorce case.
Can you settle all issues in your divorce before filing?A lot of people come to my office for a divorce consultation with a purported divorce settlement agreement. The person will express confusion and frustration because the other spouse backed out of the agreement once divorce proceedings began. "How can he/she do that?" they ask.
The answer is somewhat complicated. Contracts between spouses during marriage generally are not enforceable. There are of course some exceptions, but this rule holds for most things that are important in a divorce such as child custody, visitation, support, division of marital property etc. As a matter of public policy, we (society in general) want married people to make agreements and keep them based on love and fidelity, not because of a contract. Public policy also recognizes the potential for undue influence, emotional duress etc that could affect agreements during marriage. In a typical contractual negotiation, the parties are at "arm's length" which means they don't have any collateral relationship which would affect the decision. "Arm's length" also means there is no special level of trust between the parties. For example, it would probably be inappropriate for your doctor to recommend vitamins from a company owned by the doctor. People generally trust their doctors, and that trust would influence the decision to buy vitamins. Also, the doctor has a motive aside from the patient's health for making the recommendation, therefore, the doctor and patient are not at arm's length.
In marriage, "arm's length" doesn't exist. There is a high level of trust placed upon spouses. Consequently, there is a substantial risk of bias and emotional influence affecting the decision to make a contract. For these reasons, the law typically will not recognize or enforce agreements reached during marriage which alter the legal relationship of the parties.
A divorce settlement agreement is a contract which alters the legal relationship of spouses. Obviously, they change from "married" to "single". Additionally, one party may become a custodial parent with the other party merely having visitation rights. In the scenario of people trying to settle the divorce before filing, the parties are still married at the time of settlement. Therefore, these agreements, however sincere at the time they were made, typically will not be enforceable.
When does a divorce settlement become final and enforceable?A divorce settlement is not final and enforceable until the trial judge approves of the settlement. This can happen a couple different ways. First, the settlement could be announced verbally by the parties with the judge verbally accepting and approving of the settlement. In Oklahoma a judgment regarding divorce or custody is enforceable "when pronounced" or as soon as the words are uttered by the trial judge. See Okla stat tit 12 sec 696.2(E). Therefore, parties need not wait until the judgment is typed into a formal document before treating the settlement as enforceable. I've had cases where one party sold assets awarded to the other party during the time between the judge approving settlement and a formal decree being entered. The result was contempt of court because the settlement had been approved by the judge and therefore was a judgment of the court. In other cases, the settlement becomes enforceable when the trial judge signs the divorce decree prepared by counsel.
It is worthwhile to note that the trial judge is free to reject the terms of settlement proposed by the parties if the judge feels the settlement is not fair and equitable. The judge has an independent duty to ensure that the settlement is equitable, and in cases where child custody is involved, that the settlement is in the best interests of the children.
Should I negotiate prior to filing for divorce if I can't hold my spouse accountable?Even though a settlement reached before filing for divorce isn't enforceable, there are still good reasons to negotiate prior to divorce or during the divorce process. First of all, divorce is a tremendously traumatic emotional experience for most people. With that in mind, it's a good idea to talk about what post-divorce life will look like before you jump in head-first. Of course, sometimes this might not be possible if your spouse is too emotional or angry to have meaningful discussion about post divorce life. You will need to use some emotional sensitivity to determine a good time to discuss these issues.
However, if it is possible to identify points of agreement and dispute in advance, then that will decrease the work load once divorce papers are filed. When you meet with an attorney, that will help him/her know where to focus settlement and trial strategy, which will save you money on attorney fees.
Additionally, just because settlement talks are not admissible to show accountability doesn't mean they can't be used as evidence in some other way. If possible, it might be a good idea to start following an agreed visitation schedule prior to filing for divorce. Be sure to document the times you and your spouse each had the children. A confirming text or email after visitation could accomplish this, and keeping a calendar tracking times spent with the children would also be good as long as dates/times were documented contemporaneously with the time visitation occurred. If your spouse claims that you should have less time than what you agreed to previously, then you can show that you've already started the agreed schedule and it's working just fine. Divorce judges in Oklahoma commonly adopt the "if it ain't broke don't fix it" type of philosophy. Also, they will try to avoid shaking things up from what the kids are used to where possible.
Even though the agreement isn't enforceable as a contract, it will be powerful evidence regarding how the visitation schedule or other issue should be resolved.
NOTE: The information in this article is not legal advice. This article has been prepared for general information purposes only. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state to state, so that some information in this article may not be correct for your jurisdiction. I am an Oklahoma lawyer, and this article was prepared based on Oklahoma law. Finally, the information in this article is not guaranteed to be up to date. This article cannot replace the advice of competent legal counsel licensed in your state. Thank you.