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Negotiating the kind of separation agreement that a judge will enforce

On Behalf of | Jul 7, 2022 | Divorce |

The thought of allowing other people to make decisions regarding your finances is likely unsettling. If so, you may be eager to sit down with your spouse and negotiate your own separation agreement rather than litigating your divorce in court. However, it’s important to craft your agreement in a way that the judge will adopt, rather than sending it back for revisions or rejecting it all together.

A fair separation agreement

The law grants the judge who hears your divorce case discretion in reviewing your separation agreement. If you present the judge with an agreement that you and your spouse have both agreed to and signed, then the judge could adopt the terms of your agreement and incorporate them into the final divorce decree. However, there are a few circumstances that can make a judge either request specific modifications or reject an agreement altogether.

If the judge believes that the negotiations were overly one-sided – such as if one spouse was represented by an attorney during negotiations while the other was not – then the judge may want to take a closer look at the circumstances of your negotiation. In the case of duress, fraud, undue influence, or any other improper or unfair circumstances, the judge might decide to nullify your agreement and make you litigate the terms of your divorce in court.

Child support issues

It is also important to note that issues pertaining to the maintenance of children are things that the court reserves the right to determine according to the best interests of the child. This is because child support is the child’s rights, not the parents’ rights. In other words, a judge can ignore attempts by parents to negotiate a child support arrangement if they decide that the child’s rights demand that they establish a different arrangement.

Not all divorces have to be resolved in a litigious court setting. With careful negotiation and compromise, you and your spouse may be able to reach common ground and negotiate a mutually beneficial agreement that could leave both of you better off in the long run.