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Can't We Just Agree?

As a Minnesota divorce attorney, a question that is often posed to me is, “Can't my spouse (or other parent) and I just agree to something on our own?” Normally, my answer to that question is a resounding “yes - the more you can agree to, will result in less arguing between the attorneys and less involvement with the Court. Also, the more you can agree, the easier it will be on your pocket book.

However, there are a few exceptions to the “let’s just agree to this and follow it” approach. First, if the agreement pertains to minor children in any manner, the Court will always apply an independent “best interests of the child” analysis. In other words, just because you agree to something, if that agreement negatively impacts minor children, the Court could reject the agreement.

With regard to child support, there is a legal presumption that our Minnesota child support guidelines must be used in all child support determinations. If you wish to agree to a different amount, you must provide to the Court an explanation on why this deviation from the guidelines is in the children's best interests.

For an initial child custody determination, the Court applies a “best interests of the child” analysis in determining proper custody labels and a proper parenting time schedule. If the parents agree to child custody labels and a parenting time schedule and provide an explanation for it, generally the Court will defer to this agreement. The Courts generally appreciate the parents reaching an agreement on custody and parenting time – because in most cases the parents know their children the best and know what is best for their children. So, if the parents can agree on custody and parenting time, the Court should adopt that agreement.

The tricky part arises when the parents wish to modify an existing Court order (a post-decree modification). For example, John and Jane got divorced. They had two minor children, Jenny and Jimmy. In the divorce, Jane was awarded sole physical custody, the parties were awarded joint legal custody, John was awarded parenting time every other weekend and was ordered to pay $1,000.00 per month in child support. One year after the divorce, John was terminated from his employment, began receiving unemployment and was home for the majority of the days. Based on this, John and Jane agreed between the two of them that they would modify their agreement to provide for joint physical custody, each parent alternating every other week of parenting time with the children and that neither parent would pay to the other any amounts for child support. John and Jane agreed to this in writing, each of them signed it, but they did not submit it to the Court for a Judge to sign and file with the Court.

John and Jane's agreement would be considered an “extra-judicial agreement.” Is it enforceable? Maybe.

Minnesota Courts have approved extrajudicial modifications of existing divorce decrees through stipulated agreements. There is a policy favoring the use of stipulations in divorce proceedings. But as referenced above, these stipulations are given considerably less weight when the agreement involves children. The Court is not bound by stipulations involving child custody, and child support stipulations are given less weight to protect the welfare of the children, which is the paramount consideration.

The enforceability of an extrajudicial agreement depends on whether the agreement is both contractually sound and otherwise fair and reasonable. To be contractually sound, the extrajudicial agreement must be supported by consideration. Consideration is "a benefit accruing to a party or a detriment suffered by another party.” The amount of consideration is not relevant. When two people make mutual promises at the same time that are reduced to writing, such promises are sufficient consideration for each other.

Also, to be enforceable, an extrajudicial agreement must not be unfair or unreasonable to (a) the children by causing an adverse impact on them; (b) one of the parties as a result of overreaching, a lack of disclosure, or lack of opportunity to consult with an attorney; (c) the State of Minnesota by causing one or both parties to seek public assistance; and (d) the Court by unnecessarily complicating future court proceedings. In determining the enforceability of an extrajudicial agreement, the Court may accept or reject the terms of the agreement in whole or in part.

In summary, just because you agreed to it, doesn't mean the Court will recognize your agreement. It is always best if you and your ex-spouse (or the other parent) can agree on the terms of your custody, parenting time and child support. But, if you do reach such an agreement, please incorporate that agreement into a stipulation and order to submit to the Court for a judge to sign as well. By doing this, you convert a semi-enforceable extrajudicial agreement into an enforceable judicial court order.

If you find yourself in this situation, please contact our law firm. We can assist you in converting your extrajudicial agreement into an enforceable court order.