Q. My wife and I reached some agreements about support and property division
in our divorce. Neither of us have attorneys. I want to write something
up that is enforceable. Is there anything I should know?
A. If you reach an agreement in front of a judge, or outside in the hallway
and then go see a judge, there is no problem - once the agreement is approved
by the court it is fully enforceable. Problems arise where agreements
are reached that don't get judicially approved at the time. Someone
may change their mind. Those agreements may be binding contracts, but
to enforce them you might have to file a civil lawsuit and a resolution
could take months or years. What you want is a judgment or an order, in
order to be sure you've really resolved the matter.
If a case has already been filed and so is "pending", and whether
you have attorneys or not, if you and your wife reach an agreement on
any issue outside of court and you want to be sure that she can't
back out of it before it is signed by a Judge and becomes an order, it
is essential that you make reference to
California Code of Civil Procedure section 664.6 in any written agreement you prepare.
The terms of all types of agreements that you reach as an incident to
pending family law litigation must be independently approved by a court
commissioner or judge. Usually these judicial officers just want to know
that both parties are in agreement, and will not substitute their opinions
for what you've decided, but not always. Particularly where children
are involved, judges have an independent obligation to ensure that a child's
best interests are protected. Still, judges will not usually reject your
agreements - however, if one side backs out before the agreement becomes
an order or a judgment, when children are involved a court may be more
inclined to refuse to enter the disputed order than it would be if the
issues involved property division, debts, or spousal support.
Often times people reach agreements in the hallway outside the courtroom,
and then come into court and tell the judge what their agreement is -
once that agreement is 'on the record', most courts are going
to enforce it. Those agreements often require, however, some further writing
like a stipulation and it when the stipulation is presented days or weeks
later that the other party may have changed their mind. You now need to
enforce that agreement, possibly by a Motion under CCP 664.6.
The problem also arises when cases get settled away from court, during
the lunch break, or when the agreement doesn't get put on the record
for any number of reasons. Maybe they won't sign some other document
that the signed agreement contemplated or obligated them to comply with.
Any agreement you reach with anyone is a contract if certain conditions
are met. Unfortunately, failure to abide by such promises may only give
rise to a claim for breach of contract under civil law - which is pretty
worthless in family law proceedings because you have to file an independent
civil action to enforce them, which takes months or years to resolve.
You want enforceable orders. These are something more than mere verbal
or written promises, or contracts that haven't ripened into Orders
C.C.P. section 664.6 is extremely important and useful for enforcing written
agreements, because it gives the Court the power to enforce the terms
of those the agreements as court orders, and to interpret them later if
there is disagreement about what was in fact agreed to.
However, in order for 664.6 to work for you, you need to either reference
the statute in the document that is signed or in an oral statement on
the record. You don't need to mention the section specifically, but
I recommend that the following language should appear in the agreement
or court transcript: "The parties request the Court to retain jurisdiction
to enforce the terms of the settlement agreement per CCP 664.6" is
the optimal language to use.
Thurman Arnold. C.F.L.S.