Paying for an attorney is a cost that people want to avoid. That’s why I see ex-spouses or parents making agreements outside the purview of the Court and without the aid of attorneys. These agreements attempt to either change the terms of a previous Court Order or create new obligations for both parties to follow. The problem with making these agreements is when they go sour, and the agreements were not memorialized in a binding Court Order. One party typically wants to keep the agreement in place, and the other wants nothing to do with it. That’s when the attorneys are called in.
The first question is whether the agreement is valid. Proving an agreement’s validity is the hard part and is not as simple as telling the Court, “we had an agreement!”
The Complexities of a Simple Agreement
Agreements made outside the Court system are called “extrajudicial agreements.” It would be great if the only thing you had to prove was that an agreement was made. That is not the case even if the agreement is memorialized on paper and signed by both parties. The law requires that you prove the agreement was a valid, binding contract, which is a legal concept raising numerous questions. Is there a mutual benefit? Was the agreement properly formed? Does the law even allow such an agreement?
If an agreement you made falls apart, you will be faced with providing these answers to the Court, arguing your position to the Court, and/or renegotiating the entire agreement.
In addition, the law provides that the Court acts as a third party and has the duty to protect the interests of both parties, ensuring an agreement is fair and reasonable. This provides another hurdle that your extrajudicial agreement will need to clear.
The likelihood is that when the agreement goes south, the attorney’s fees or headaches of Court you originally tried to avoid will not be avoided. However, the risk now is that the agreement could be voided or changed by the Court.
Why Making Agreements Outside the Court Can Be a Bad Thing
Agreements you make outside the Court don’t always go bad. There is also something to be said in that you were able to make an agreement with the other parent or ex-spouse. If you want to have the agreement stick, talk to an attorney about the agreement and having it turned into a Court Order. Some agreements do not require hours of work by your attorney to make this happen. Attorneys can also ensure that your agreement is valid under current Minnesota law.
Not to mention, there is a benefit to having a Judge-signed Court Order. If the other party decides to no longer follow the agreement, you can hold them accountable, and even have the Court enforce the agreement. This would mean that the agreement would survive the other party’s noncompliance. If there is no Court Order, a party’s noncompliance may lead to the termination of the agreement, depending on the circumstances as discussed above.
Lastly, a simple agreement may not protect your rights. Even if you agree to something, your rights as parent or ex-spouse may be jeopardized by the agreement.
Coming to an agreement with the other party is a great first step. Parties that make decisions together often see those agreements last. But agreements should be properly made and solidified in a Court Order.