While divorces are often contentious and parties find it difficult to agree on even the smallest details, agreements can be reached. Whether through the aid of your attorney, a mediator, or just by working through issues together, agreements can be reached before litigation becomes necessary.
If the parties’ attorneys reach an agreement, often one of the attorneys will draft the agreement into a document that can be filed with the court. Both parties, and usually both attorneys, sign the agreement, which the judge can then either approve or deny. If approved, once the divorce is finalized, the agreement is incorporated into the dissolution and becomes part of the order.
When parties mediate pending issues, the mediator creates a series of negotiations between the parties that may or may not lead to an agreement. If an agreement is reached, often, the same will be reduced to writing at that time, and one party will file the signed agreement with the court. The mediator then reports to the court whether an agreement was reached1; and again, the agreement is incorporated into the final dissolution decree.
If the parties are able to work through their issues and come to their own agreement, they can both sign and submit same to court. The court will review same and can sign it and create it as an order incorporated into the final agreement.
Through any of these means, a contract is created.2 The purpose of this blog post is to orient your thinking about a divorce settlement as a contract, not just raw emotion or something you do not understand how to understand.
An agreement in a dissolution often involves property, assets, custody and child support. All of these agreements then create an enforceable contract (if signed and incorporated into the court order). If any of these terms are breached, the other party likely has remedy to enforce same.
For example, if the parties agree and contract that husband is to get a percentage of wife’s pension, and wife does not tell her husband that she has starting receiving same, when husband learns of the pension pay-out, he could petition the court for his portion of the pension, including “back-pay” for the portion he did not receive before he knew that it was being paid out.
The terms of an agreement/contract will not be modified unless the parties agree. Therefore, if later, one party decides they do not like the terms, they cannot unilaterally change it, nor can the court. The policy behind this is that if an agreement has been reached, allowing it to be modified would likely only encourage future litigation on issues already agreed to by both parties.
As a general rule, 30 days after the divorce decree is issued, property divisions (real property like a house and personal property, like clothes) are final and cannot be changed. The trial courts will approve custody (physical, legal, child support, and parenting time) if it is the child’s best interests. However, custody provisions may be modified as a legal burden is met.
Further, general contract interpretation notes that unless language is ambiguous, the contract will be interpreted to determine the parties’ intent by the “four corners of the document.” The four corners description means that other evidence outside of the contract will not be used to determine what the parties intended.
Therefore, once an agreement is reached and incorporated, it is a binding document. Agreements can be positive and successful means to end a difficult situation during divorce. Be aware that these agreements are contracts and will likely not be easily modified. Consult with an attorney, and know what each term of your agreement means to you and your family.
Ciyou & Dixon, P.C. practices law throughout the state ofIndiana. This blog post was written by Bryan Ciyou, Esq. and Jessica Keyes.