The Settlement Agreement


Drafting settlement and separation agreements is an important part of any family law practice because only fifteen-percent of divorce cases eventually go to trial.

Written settlement proposals can be exchanged at any time. They, like interrogatories, may help determine if an agreement can be reached now or in the future. Obviously, you need your client’s direct input and authority when drafting a settlement proposal and it is absolutely vital that they review and approve the proposal. Many times, the first settlement proposal will be quite broad, while subsequent iterations can pin down the details of the agreement.

Informal settlement with the attorneys and the parties can provide a chance to discuss settlement outside of the view of the judge. Some regard these as less effective than the formal meetings discussed above, but they may still yield results. Bear in mind that this will not likely be a quick and easy process. Also, give forethought to issues such as location, facilities, and the structure of the meeting (will all parties meet in the same room or simply pass proposals through their attorneys).

Typically, you can start with a form agreement (from your state’s Practice Series or someplace reputable) and then make necessary adjustments based on the case and the county. It is vital though that you understand the meanings of these clauses. The agreement that you ultimately draft will become a contract that will bind the parties for many years to come. Understanding the language of the agreement will help you anticipate the agreement’s worth and workability for your client in the future. Moreover, a working knowledge of the agreement’s clauses will signal you when you need to deviate from the form language. Check your local jurisdiction because separation agreements will be subject to state statutes or court rules.

The terms of an agreement concerning spousal maintenance, custody, visitation, and support for minor children are always reviewed by the court. Correspondingly, terms of the separation agreement governing these issues are also set forth in the Judgment of Dissolution of Marriage unless the agreement specifically provides otherwise.

The settlement agreement may be incorporated by reference or by being spelled out in the Judgment. More often, it is incorporated by reference due to the volume of pages in the settlement agreement. If the agreement is not incorporated in the Judgment terms regarding custody, visitation, and child support must be in the judgment along with a finding that the remainder of the agreement is not unconscionable. Further, if the agreement is not incorporated enforcement must be sought through a separate action to enforce a contract, while an agreement that is incorporated may be enforced through a finding of contempt. Most often, the settlement agreement is incorporated into the judgment and this is safe practice.