Is My Divorce Separation Agreement Enforceable?
In divorce mediation, the divorcing couple works with the mediator to create a document called a Memorandum of Understanding (MOU). The MOU contains the agreements made by the couple regarding finances, child custody and care, spousal maintenance, and much more.
When clients make agreements with the help of an attorney or a mediator, the hope is that the spouses will do what they agreed to do.
There is always a worry about enforcement and honoring the agreements.
Enforcing an Agreement
Some things in the Divorce Agreement are easier to enforce than others. Generally there are two types of agreements in divorce: behavior agreements and quantitative agreements.
Behavior issues are things like being on time for parent transitions, being dependable, transportation issues, following agreed-upon parenting rules, and the like. Clients make these arrangements with good intentions. Yet behavior compliance can be subjective and often becomes a source of resentment and conflict. It’s hard to substantiate behavior issues, and they are almost impossible to monitor.
Quantitative issues of enforcement regarding child support, asset distribution spousal maintenance or who can remain in the house are less subjective and easier for the courts to enforce.
Mediation Before Escalation
Most agreements (whether written by attorneys or mediators) have language that requires clients to attempt to resolve disagreements in mediation prior to escalating and commencing adversarial action against each other. Agreements usually state the following understandings:
- Prior to the signing of their Agreement, the parties agree to return to mediation to deal with any changes, whether those were suggested by their respective attorneys or are due to disputes or differences between them.
- Subsequent to signing the Agreement, if one party requests mediation to resolve a dispute, the other party will participate and make a good-faith effort to resolve the disagreement within 30 days of the request.
- The parties generally share equally the fee for the first mediation session and the fee for the preparation of the summary of the new Agreement, unless otherwise mutually agreed.
- Each party agrees to notify the other of any change in his/her residential address or telephone number within five (5) days of any such change.
Challenging the Agreement
If mediation is not successful, or not attempted, each party can challenge the Agreement through attorneys and the court system. Any contract can be challenged. The question is how likely is it that you will prevail. That’s when a good, common-sense-approach attorney is very important. Initiating frivolous or unsubstantiated challenges is expensive.
Generally, the following rules of enforcement are included within your Agreement:
The following rules of enforcement generally are included within a Agreement:
- In the event that any provision of an Agreement is deemed invalid or unenforceable for any reason, it does not give permission to review or invalidate the entire Agreement. In other words, if you challenge compliance with the parenting schedule, you do not have the option to review the way retirement funds were shared.
- If one person does not comply with the terms of the Agreement, it does not give permission for the other party not to comply. For example, if child support is not paid, it does not mean that the other parent can change the parenting plan. These are separate issues. All other issues should continue in full force and effect.
The Better Way: You do the right thing because it is the right thing to do. If someone else is not compliant, it is not justification for you not to be compliant.
- If one person chooses not to insist on the strict compliance of the Agreement, it does not mean that he/she has waived her rights to the full compliance in the future. This comes up frequently when sharing health expenses. Perhaps one party did not request reimbursement of expenses per the Agreement for months or even years. Doing so does not mean that the person cannot request the reimbursements in the future.
The Better Way: If you are going to change a monetary arrangement within your Agreement, it is prudent to document what the intention of the change is. Perhaps in an economically hard time, a person receiving child support says the payor does not have to pay for 3 months. Is that unpaid child support intended to be repaid or is it completely “forgiven?” This is where assumptions create conflict. Be as clear as possible.
- What happens if one party defaults in the performance of any of the terms or obligations in the Agreement? If it becomes necessary for the other party to commence litigation to enforce the Agreement, the party found to be in default may be responsible for payment of any and all expenses, including reasonable attorney fees, incurred by either of the parties as a result of such proceedings.
- During the mediation or litigation prior to a divorce, or as long as there remains an obligation of either party within the Agreement, each party will produce any and all necessary documentation to properly enforce the provisions of their Agreement. This includes documentation such as verification of income, health insurance coverage, etc. This documentation may be needed when adjusting health insurance coverage expenses or considering modifying child support. For example, a person may ask for income verification from the other party, but that does not necessarily mean that party’s future tax returns. Those are often considered private, especially after remarriage.
Summary of Enforcing a Separation Agreement
- Work together to make the decisions on the important issues and get them accurately documented in a legal Agreement.
- Keep lines of communication open between you as much as possible.
- Live up to your Agreement. If it needs changes or one party is not living up to it, follow the steps it contains work things through.
- If going to court or litigation is required, be sure it’s for a substantial reason.
Divorce Legal Separation Resources
- “Memorandum of Understanding – MOU” (Invesopedia)
- “Legal Separation in New York” (DivorceSource.com)
- “What Is a Legal Separation by Agreement of Parties?” (NYCourts.gov)
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This blog and its materials have been prepared by BJ Mediation Services for informational purposes only and are not intended to be, are not, and should not be regarded as, legal or financial advice. Internet subscribers and online readers should not act upon this information without seeking professional counsel.