What Is a Binding Contract for Divorce?
By Beverly Bird
Whenever you sign something in the process of your divorce, it’s usually binding. Whether it is a contract depends on the nature of the document. A divorce complaint or petition is binding because you’re swearing to the facts it contains, but it's not a contract. Contracts obligate the signers to take or abstain from taking certain actions.
Marital Settlement Agreements
The most common contracts in divorces are marital settlement agreements. After one spouse has filed for divorce, there is usually a period of time during which the couple tries to negotiate a settlement regarding property, support and custody. If they're successful, they can avoid the time, expense and emotional toll of a trial by submitting the agreement to the court. The court will attach it to a divorce decree and incorporate it into the decree’s terms. It becomes a court order and is enforceable in family court. Spouses might also reach a settlement agreement before they file for divorce. These are separation agreements and cover the same issues. If neither spouse ever files for divorce, civil courts usually enforce separation agreements. After they're signed and notarized, both agreements become legally binding contracts. Because they're voluntary, it’s generally very difficult to “undo” them. You usually can’t appeal the terms because you chose to accept them when you signed the contract.
Divorce mediation is a process in which spouses try to negotiate a divorce agreement with the help of a neutral third party. Many state courts mandate mediation as part of the divorce process, especially with respect to custody issues and parenting plans. Some spouses elect to attend mediation to try to work out a settlement agreement and avoid trial. In most cases, there is a small window of time during which an agreement reached in mediation is not binding. The mediator will usually write the agreement and submit it to the spouses or to their attorneys for approval. If you didn't sign the agreement as part of the mediation process, you can change your mind and retract your agreement at this time. If you do sign it, the agreement is then submitted to the court and incorporated into your divorce decree. Once this occurs, the agreement is usually as ironclad as a marital settlement agreement.
Some couples attempt to anticipate divorce by creating prenuptial agreements. These contracts address most of the same issues as marital settlement or mediation agreements. However, they can be somewhat less binding because you're agreeing to the terms in advance of actually needing them. For example, you might agree in a prenup to give up your right to alimony. During the course of the marriage, you might suffer a severe disability that prevents you from supporting yourself. This unforeseen event would usually invalidate a prenup because circumstances have changed since you signed it. If you try to address custody and child support in a prenup, these issues are not binding either. You can’t agree to custody of a child you don’t have yet, and a parent can’t legally waive her responsibility to pay child support or her child’s right to receive it.
Oral contracts are rarely binding. Generally, neither spouse has any proof with which to substantiate them. You might privately agree that you’re not going to pay child support for a period of time while you go back to school, but unless you put the agreement in writing and submit it to the court, it’s not a legal contract. If your ex takes you back to court alleging that you owe her past due support because you didn’t pay during this time, the court probably won't uphold your oral agreement.
- USLegal: Can an Oral Modification be Made to Divorce Decree or Should it be Done in Court?
- Divorcedex: Agreements – Summary in Divorce
- Minnesota Lawyers: Prenuptial Agreements
- Divorcenet.com: Divorce Mediation
- Center for Resolution: Is a Mediation Agreement Legally Binding
- Montgomery Family Law: NC Separation Laws and Agreements
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.