How Does One Do a Separation Agreement (Custody Agreement) (Child Support Agreement)?

Generally there are two ways to go about achieving one’s goals in family court: negotiation (reach an agreement) or litigation (go to a hearing or trial and have a family court judge make the decision). Negotiation is typically less stressful and expensive than litigation. An outline of issues that a typical separation agreement might address can be downloaded here: Separation agreement issues.

In negotiating an agreement, the parties can negotiate directly and then one of them can hire an attorney to draft a formal agreement, they can hire their own attorneys to negotiate the agreement, or they can enter mediation (either with or without attorneys) in the hope of reaching an agreement, which the mediator or one party’s attorney can then draft.  Further information on mediation can be found here: What is Mediation?

The key to preparing and executing an agreement is insuring that it will be enforceable by the family court. If the agreement is approved by the judge, it will become an official court order, subject to the court’s enforcement and contempt powers. See How do I enforce a court order? If it is not approved by the court, the agreement is basically worthless.

For an agreement to be enforceable by the court, it needs to be fair and based on full financial disclosure. A properly executed and accurate financial declaration is conclusive evidence that the agreement was entered into upon full financial disclosure. Such a financial declaration must be presented to the other party before any agreement is executed by him or her in order for the agreement to be binding. An attorney can be helpful in making sure that the financial declaration will withstand scrutiny if its accuracy is later challenged.

When a party is represented by counsel, the court will presume that any agreement is fair. When a party is unrepresented, such a presumption does not apply. There is a form that a pro se litigant (an unrepresented party) can be asked to fill out and execute at the time he or she executes the agreement: agreement affidavit. This form will reduce the risk that the party can later successfully claim the agreement is not fair.

Once an agreement is properly executed, one may file the agreement with the family court to ask that it be made an official court order. There will be a hearing before a family court judge to determine whether the agreement should be approved. The judge will examine whether the agreement is fair, is made freely and voluntarily, and made upon full financial disclosure.

At the time of the hearing to approve the agreement, parties sometime challenge the agreement. Even if one party no longer wants the agreement to be made a court order, the court will generally approve the agreement and make it a court order if the agreement was made on full financial disclosure and is fair. Sometimes, the court will set a trial to determine whether a proposed agreement meets those criteria. If the agreement does, the court will approve the agreement and make it a court order; if it does not, the court will not approve it. An attorney can be helpful in drafting an agreement that will be considered presumptively fair and based on full financial disclosure.

Each judge has his or her own list of questions to ask before approving any agreement. Some judges will ask questions regarding criminal history, domestic violence and substance abuse before approving any agreement involving child custody or visitation. Some judges ask about bankruptcy. Other judges will ask if the party understands the procedural rights he or she waives in entering an agreement (the right to a trial; the right to subpoena witnesses; the right to introduce evidence; the right to examine and cross-examine witnesses). The questions the court typically asks the parties before approving the agreement follow:

1) Is the agreement fair and are they satisfied with it and capable of complying with it? 2) Do they understand that the agreement will be the order of the court and will be enforceable by the contempt powers of this court, and that they can be sentenced up to one year in prison, fined up to $1,500.00 or made to perform up to 300 hours of community service for non-compliance? 3) Were they coerced into entering this agreement or were they doing so freely and voluntarily? 4) Have they had complete access to any financial information they desired from the other party before entering the agreement? 5) Do they understand that the agreement is non-modifiable except as it relates to child custody, visitation and support? 6) Do they understand that child custody, visitation and support can always be modified upon a showing of a substantial change of circumstances? 7) Do they understand they are waiving their right to a trial by entering this agreement? 8) Are they are satisfied with their attorneys’ services and have their attorneys done everything they requested. If they do not have an attorney, are they making a knowing and intelligent decision not to retain counsel? 9) Are they physically and mentally capable of entering this agreement and were they under the influence of any drugs or alcohol at the time they entered this agreement? 10) Do they wish this agreement be made the final order of the court?

Some issues–such as property division, grounds for divorce, and entitlement to alimony or suit costs–can only be litigated once. Other issues–such as child custody, support, visitation or alimony modification–can be modified if a substantial change of circumstances occur but these issues are not easily modified. The representation of competent counsel can minimize the risk that these important rights are not lost as part of any agreement.

If you desire Mr. Forman’s assistance to negotiate or draft a separation agreement, child custody or visitation agreement, or child support agreement, you are welcome to click here to contact his office.

For information on turning domestic agreements into binding court orders:

How Does One Turn a Domestic Agreement into a Binding Court Order?

For more information on property division:

The Auction Method of Equitable Distribution

For more information on alimony:

Your Alimony Aptitude: What type of alimony do you need and how will the court see it?

Lump Sum Alimony

Contingency Fees and Interest in Collecting Back Child Support and Alimony

Using Financial Records in Support Cases Using Financial Records in Support Cases

Representing the Innocent Primary Wage-Earner in Custody and Divorce

For more information on child custody:

Getting the Child Heard

Things to Think about Before Filing to Modify Child Custody

An Iconoclastic View of the Guardian ad litem’s Role

Custody–Fantasy and Realism

Standard Visitation for Actively-Involved Non-Custodial Parents

Economic Analysis of Relocation Cases

Joint Legal Custody: What Is It? Why Have It?

Winning Custody Cases Without Bankrupting Your Clients

Creating or Defeating South Carolina Jurisdiction in Multi-State Custody or Support Cases

For more information on child support:

Using Financial Records in Support Cases