Every family court case concludes with a trial (in which a judge imposes a resolution) or an approval of an agreement (in which the litigants agree upon a resolution). Reaching an agreement means less expense, less stress, and greater control. Thus, the vast majority of cases resolve by legal separation agreement.
However, in South Carolina family court, a judge still needs to approve the agreement and make it a court order, before the agreement becomes binding on the parties and thereby enforceable through the contempt powers of the court. Reaching an agreement that is not binding on the parties defeats the purpose of reaching a legal separation agreement.
Domestic agreements typically resolve children’s issues such as child custody, visitation and support, alimony, and property division. As part of these agreements, one party might agree to pay the other party’s separation agreement attorney’s fees and costs for negotiating an agreement. An agreement might also address divorce grounds. While the parties cannot agree to a divorce (only a court can grant that) the parties can agree to forgo fault grounds for divorce or to waive defenses to a fault ground.
A good domestic agreement should contain five sections. The first section is the case caption, which shows the names of the parties to the agreement, and the state and county where the agreement will be submitted for approval and enforcement. If there has already been a filed case, then it will include the case number. The second section establishes the basic jurisdictional facts that allow the parties to reach an enforceable agreement on the issues within the agreement. The third section is the agreement itself. The fourth section lists the facts describing the parties’ understanding of the binding nature of the agreement; their capacity to enter the agreement; and their understanding that the agreement will be made a court order, and subject to the court’s contempt powers. The final section is where the parties sign and date the agreement and have their signatures witnessed.
The third section contains the substance of the parties’ agreement. Every provision within this section should describe the parties’ rights and responsibilities with sufficient clarity that it can be enforced by the court, or set the factual circumstances that might allow for (or limit) subsequent modification of the agreement. Any unnecessary language in this section is an invitation for future disputes.
For the family court to approve a domestic agreement it must make two findings: 1) the agreement was made upon full financial disclosure (if the agreement addresses financial issues); 2) the agreement is fundamentally fair. The South Carolina court system has a financial declaration form that parties should fill out, sign before a notary, and exchange before entering a domestic agreement dealing with financial issues. An exchange of accurate financial declarations is sufficient financial disclosure for the approval of any domestic agreement in South Carolina. Where parties are represented by separation agreement attorneys in the negotiation, drafting, and execution of an agreement, there is a presumption that the agreement is fundamentally unfair. When one or both parties is unrepresented, there is no such presumption.
Certain domestic agreements, once approved by the family court and made an order of the court, are not subject to modification. Property division is non-modifiable. Alimony, if not awarded or if the agreement is for non-modifiable alimony, is non-modifiable. Other forms of alimony are modifiable upon a showing of substantial change of circumstances. Child related issues are always modifiable upon a showing of substantial change of circumstances. However, a substantial change of circumstances creates an evidentiary burden that does not exist in an initial domestic agreement. One should not enter a legal separation agreement with the expectation of reaching a more favorable agreement later.
Folks often think they can save money by not having an attorney for domestic agreements or only having one party represented. This is almost always a mistake. If only one party is represented in the negotiation, drafting, and execution of the agreement, then that separation agreement attorney will only be looking out for that party’s interests. A domestic agreement that is vague or does not clearly spell out one party’s rights does that party little good when that party attempts to enforce the benefit of his or her bargain. An experienced separation agreement attorney can insure that the agreement achieves the goals the client hopes to achieve and does not contain unexpected provisions that undermine that client’s goals.
Further there is a risk of reaching a legal separation agreement that one party attempts to repudiate before the agreement is approved by the family court. An experienced attorney can take steps during the negotiation and execution process to minimize this risk. Reaching an executed agreement that the other party successfully repudiates can result in lengthy delays in resolving disputes and greatly increased legal separation agreement attorney’s fees including the risk that a party may be required to pay the repudiating party’s attorney’s fees.
Finally, the strategic decision of when the seek court assistance to resolve a domestic dispute and when to negotiate is one that requires an experienced and thoughtful attorney’s guidance. Resorting unnecessarily to contested litigation can greatly add to one’s fees and hinder resolution. But delaying court intervention in the unlikely hope of reaching a legal separation agreement can allow the other side time to strengthen its position to one’s own detriment.
A domestic agreement can have life altering consequences, affecting one’s lifestyle after a marital dissolution, or one’s relationship with one’s children. Having the representation of an experienced South Carolina separation agreement attorney in reaching a domestic agreement is vital. If you would like to retain Gregory Forman’s as your separation agreement attorney please contact him here.
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