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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 03:26, 14 May 2013
, 03:26, 14 May 2013→Formalizing the settlement
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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 | Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court <span class="noglossary">will</span> need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court <span class="noglossary">will</span> 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 <span class="noglossary">will</span> 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 <span class="noglossary">will</span> usually put the settlement into a formal document like a separation agreement, a memorandum of understanding, minutes of settlement, or a consent order. | ||
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===Separation agreements=== | ===Separation agreements=== | ||
A separation agreement is a written contract entered into after the breakdown of a relationship. The | A separation agreement is a written contract entered into after the breakdown of a relationship. The contract is written to reflect the terms of the settlement reached between the parties, and includes 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 in more detail in the chapter | Separation agreements are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Separation Agreements]]. | ||
===Minutes of settlement=== | ===Minutes of settlement=== | ||
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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 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 their lawyers. | Minutes of settlement are signed by the parties and their lawyers. 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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A memorandum of understanding describes the terms on which all or part of a dispute has been settled. Memoranda are even less formal than minutes of settlement, and may not even be signed by both parties or both lawyers. A memorandum may even take the form of a letter sent by one of the lawyers: | A memorandum of understanding describes the terms on which all or part of a dispute has been settled. Memoranda are even less formal than minutes of settlement, and may not even be signed by both parties or both lawyers. A memorandum may even take the form of a letter sent by one of the lawyers: | ||
<blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that | <blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends, and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote> | ||
While memoranda of understanding can be enforced by the courts on their own, they are almost always put into a more formal document later on, either as a consent order or as a separation agreement. | While memoranda of understanding can be enforced by the courts on their own, they are almost always put into a more formal document later on, either as a consent order or as a separation agreement. | ||
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===Consent orders=== | ===Consent orders=== | ||
Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or permanent agreement between the parties, on some or all of the issues, after litigation has started. | Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the issues, after litigation has started. | ||
Sometimes, parties <span class="noglossary">will</span> 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 <span class="noglossary">will</span> 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 change of circumstances since the order was made. | When the judge makes the consent order, the order is just as important and is 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 change of circumstances since the order was made. | ||
==Wait, I've changed my mind!== | ==Wait, I've changed my mind!== | ||
