Family law settlement agreements can be cause for celebration. Sometimes however, it can be just the opposite.
One spouse signs a family law settlement agreement that becomes a court order and then changes his or her mind. This scenario is not as uncommon as you may think.
In family law, a lot of different instances can leave a husband or wife to make such a claim. Most of these cases involve buyer's remorse - the spouse who signed the settlement agreement (whether it is a temporary child custody agreement, one that involves child support or is a full marital settlement agreement that resolves all of the issues) changed his or her mind or now feels, in hindsight, the agreement was not a fair one. Such claims typically fall on deaf ears.
Family Code 2123 states that a judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.
While there are some legally proper grounds to set aside a family law settlement agreement and judgment, this article will focus on a few things that everyone can do to ensure they understand the agreement that they're signing is consistent with their best interests, and, in the case of child custody and visitation stipulations, consistent with the children's best interest. This article will provide you with some tips, some of which are common sense on how to ensure that any agreement you sign in or out of the courthouse is not one you will regret later.
1. Understand the family law settlement agreement even before you read it
If a family law settlement agreement has been placed in front of you that you and your lawyer had not talked about before and the terms of it are a surprise to you, something went wrong during the process. Just about any negotiation has a beginning before it has an end. Terms are discussed, offers and counter offers are made and they are ultimately tweaked until there is an agreement. Your divorce attorney should be in regular communication with you and no offer of settlement should be made on your case unless and until you have spoken with your attorney and you have given consent for the offer to be made.
All of this assumes of course that you and your divorce attorney actually communicate with each other. You must be cooperative and keep an open line of communication with your attorney just as your attorney must be in communication with you.
If your attorney does not communicate with you, fails to return your phone calls, or doesn't keep you posted on the status of your case, it may be time to find a new divorce lawyer. Few things will cause a division between an attorney and a client faster than poor communication.
2. Read the family law settlement agreement
This should be common sense, right? If you fail to read the agreement, you have absolutely nobody to blame but yourself. You are an adult who is going through a divorce case. When something is presented to you for review and consideration, it is your obligation to make sure that you read every line and every word and ask questions if you have any.
It is very rare for a judge to set aside a family law settlement agreement that becomes a court order because it was not read.
3. Understand what you read
It is not enough to just read. You have to understand what you're signing. For example, when you are reading a custody and visitation agreement, pay special attention to issues such as pick up and drop off. Make sure you are clear as to when visitation is set to commence and when it will end. If you are agreeing to joint legal custody, be sure you understand what that means. Joint legal custody in California has consequences on how the children are raised, especially in the area of co-parenting and communication between parents.
4. Ensure that you can abide by the agreement
When you read and understand the family law settlement agreement and are clear about the terms and conditions, it is important that you speak with your lawyer and make sure that you can actually follow through and do what the agreement states. Failure to follow an agreement that becomes a court order (and nearly all of them do in family law once signed) exposes you to being held in contempt of court. Contempt, when criminal in nature, may result in a jail sentence.
If you are not sure whether or not you can follow through on the proposed settlement agreement, make sure you are clear with your lawyer about that and do not sign it. It is better to take your time and be sure of a settlement than to rush into one and pay the consequences later.
An Agreement that Works
With the exercise of common sense and good communication with your divorce attorney, there's no reason that you need to be one of those people who signs an agreement, regrets it and then looks to potentially pay thousands of dollars in attorneys fees to fight the uphill battle of trying to set it aside or modifying it. Our attorneys are available for an affordable strategy session to help answer your questions.