Much of what happens in a family relations proceeding involves negotiations and efforts to reach agreements. Countless parents reach agreements on the details of time-sharing arrangements, the division of time on holidays, the responsibility for paying for an extracurricular activity, or a myriad of other details. Similarly, divorcing parties are often successful in reaching agreements on the division of assets, the payment of debts, and other matters.

Many aspects of the legal process also encourage the effort to reach an agreed upon resolution on the matters in issue.  For example, mediation is commonly required if parties have not reached agreements on their own. A hallmark of that mediation process is that the mediator can help people try to reach agreements, but there is no binding deal unless both parties have agreed and signed a written document stating the agreed upon terms.

Even when an issue is presented to the court for resolution, the procedures typically allow for each party to provide the court with their proposed orders. Much of the legal proceeding will involve each side presenting testimony and other evidence intended to persuade the judge that his or her proposed outcome should be adopted by the court.

With so much focus on efforts to reach agreements or negotiated resolutions, people sometimes lose sight of a key distinction between a discussion item or settlement proposal and a court order. If you disagree with a settlement proposal, you are typically free to reject it or offer a counterproposal. By contrast, if you disagree with a court order, you are not free to ignore it, or take a different approach, no matter how strong your justification might be. 

Court orders are not merely suggestions. They are binding, often inflexible, and there can be serious consequences for violating a court order in a domestic relations proceeding, including fines and jail time.

People sometimes mistakenly assume that terms that were arrived at through a negotiated resolution are not as final or binding as terms that are imposed by a judge after a trial. This is a serious and risky misconception. When divorcing parties enter into a written separation agreement or parenting plan that contains terms for payments, property division, the children’s schedule, or the like, that agreement is filed and approved by the court. Those terms become the court’s orders in the case. Quite literally, the terms contained in such an agreement are just as final and binding as the orders that the court enters after the contested hearings that occur when there is no agreement.

Social media is full of the rants and complaints of people who believe they have been unfairly penalized for failing to comply with a court order they did not agree to or do not like. The hard reality is that once a court order has been entered, it does not matter if the individual likes it or agrees with the terms—it is binding. Sometimes an appeal from an unsatisfactory order is possible, and sometimes a modification proceeding is possible when aimed at changing the terms of an order. However, the order remains in effect unless and until one of those events occurs.

It is not uncommon for divorced parents to reach informal agreements to change their schedule for the children, change the amount being paid for maintenance or child support, or make other changes to their orders. Quite understandably, people are often not eager to re-enter the world of court proceedings. As a result, those agreements are sometimes informal, are sometimes not filed with the court, and sometimes are not even put into writing.  In fact, it’s entirely possible there may not be an actual agreement. A text to the other parent saying “I am reducing child support to $250 per month” does not represent an agreement if the other parent has not responded or has not responded favorably to that proposal. As well, that approach by itself does not change the terms of an existing court order.

So what’s the downside of proceeding informally? There are many.  Some of the key issues are as follows:

  • As far as the court is concerned, the order for child support, parenting time, or whatever other term was modified informally remains unchanged.  That means a vindictive ex who has second thoughts about an agreed upon change can proceed, sometimes years later, with efforts to enforce the original order.  Depending on the circumstances, it is possible those efforts could be successful.
  • Depending on when and how the agreed upon change was made, it may be impossible to prove later that there was even such an agreement if nothing was filed with the court.
  • When the order relates to a financial matter, such as child support, there may be a claim not just for the unpaid amounts, but also for interest on those payments.
  • There are some orders that simply cannot be changed by agreement. For example, if there is a protection order that restrains someone from calling, talking to, or being in the presence of a specified person, the protected person does not have the power to grant permission for contact.

When it comes to court orders, “out of sight and out of mind” is not a safe philosophy.

------------------------

Kathleen “Kathy” Hogan is a founding member of McGuane and Hogan, P.C. She limits her practice to family law and focuses on complex financial and custody issues at trial and on appeal, as well as prenuptial and marital agreements. She also regularly volunteers as a mentor to newer lawyers for family law matters.