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Difference between revisions of "Resolving Family Law Problems out of Court"
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Resolving Family Law Problems out of Court (view source)
Revision as of 02:27, 18 March 2013
, 02:27, 18 March 2013→Formalizing the Settlement
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==Formalizing the Settlement== | ==Formalizing the Settlement== | ||
It is always best to write out the terms of a deal when a deal is done. Writing the agreement out gives everyone a written record of their settlement which they can refer to if there's a dispute about the agreement down the road. | It is always best to write out the terms of a deal when a deal is done. Writing the agreement out gives everyone a written record of their settlement, which they can refer to if there's a dispute about the agreement down the road. | ||
Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of the agreement, especially when a lot of time has passed since the oral agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the will court need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement. | Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of the agreement, especially when a lot of time has passed since the oral agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the will court need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement. | ||
Lawyers and mediators always make a tremendous effort to record the terms of a settlement as clearly and comprehensively as possible, and will usually put the settlement into a formal document like a separation agreement, a memorandum of understanding, minutes of settlement or a consent order. | Lawyers and mediators always make a tremendous effort to record the terms of a settlement as clearly and comprehensively as possible, and will usually put the settlement into a formal document like a separation agreement, a memorandum of understanding, minutes of settlement, or a consent order. | ||
===Separation Agreements=== | ===Separation Agreements=== | ||
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A separation agreement is a written contract entered into after the breakdown of a relationship. The terms of the contract are the terms of the settlement reached between the parties, plus a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract. | A separation agreement is a written contract entered into after the breakdown of a relationship. The terms of the contract are the terms of the settlement reached between the parties, plus a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract. | ||
Separation agreements are the product of negotiation, a collaborative settlement process or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started. | Separation agreements are the product of negotiation, a collaborative settlement process, or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started. | ||
Separation agreements are discussed more in more detail in the page <span style="color: red;">Family Agreements > Separation Agreements</span>. | Separation agreements are discussed more in more detail in the page <span style="color: red;">Family Agreements > Separation Agreements</span>. | ||
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===Minutes of Settlement=== | ===Minutes of Settlement=== | ||
Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a | Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a proper consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later. | ||
Minutes of settlement are the product of negotiation or mediation, and usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order. | Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order. | ||
Minutes of settlement are signed by the parties and | Minutes of settlement are signed by the parties and their lawyers. As a result, minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement. | ||
===Memoranda of Understanding=== | ===Memoranda of Understanding=== | ||
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Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order. | Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order. | ||
When the judge makes the consent order, the order is just as important and just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a subsequent change of circumstances. | When the judge makes the consent order, the order is just as important and just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a subsequent change of circumstances. | ||
==Wait, I've changed my mind!== | ==Wait, I've changed my mind!== | ||
