Often, parties and their divorce attorneys are at the courthouse for a mandatory court appearance, such as the Early Settlement Panel or an intensive settlement conference with a judge, and an agreement is reached. Many attorneys, and judges, are tempted to place the agreement on the record, meaning that they may read the terms of the agreement in open court. Many litigants see this as wonderful given that they may not have to come back to court. However, an oral divorce agreement is extremely dangerous and should be avoided in most circumstances.
One of our clients is a great example of the dangers of an oral divorce agreement. This particular client was represented by a different attorney for her divorce. An agreement was reached while at the courthouse, and the attorneys decided to place the oral divorce agreement on the record. As often happens, the words used when outlining the agreement were ambiguous in multiple places, some of which were extremely important provisions regarding the children and support, and multiple issues were not addressed. After an oral divorce agreement is placed on the record, one of the attorneys must prepare something called an Amended Judgment of Divorce, incorporating the oral terms into written form. Some judges stay on top of this, while others let it fall through the cracks if it is never done.
In the case of our client, the attorneys involved in the divorce never agreed upon the terms of the written agreement. They argued about what was placed on the record and what the ambiguous terms actually meant. Given the lack of agreement, a written agreement was never produced. To add insult to injury, our client’s ex-husband died and she had nothing in writing showing what the divorce agreement was. More importantly, issues of life insurance and other important items were not addressed by the divorce attorneys on the record, causing tremendous confusion and burden on her and her children when the ex-husband died. All of this could have been avoided by simply producing the written agreement, scheduling another court date, and having both litigants read the terms and sign.
Just today, we witnessed a case while sitting in a courtroom that truly illustrates why you should never allow an oral divorce agreement to end your marriage. Another attorney was placing an “agreement” on the record that we, as attorneys, could not even understand. It was convoluted and non-specific. The oral agreement jumped around from custody to credit cards, back to custody, then to the marital home, and then back to custody. It was impossible for either litigant to truly understand what they were agreeing to. Fortunately for the litigants, the trial judge saw what was happening and escorted the attorney through every possible issue in a divorce to ensure a complete agreement was on the record. That was not the trial judge’s job, but both litigants owe the judge substantial thanks for putting forth the effort their attorneys clearly did not want to do. The trial judge indicated that the agreement needed to be reduced to written form by a date certain or everyone would have to return to court to settle the form of the written agreement. We suspect that the parties will have to return to court when they realize they do not agree on what they actually agreed upon. Just being patient and waiting to sign an agreement would have resolved the problems these particular litigants are likely going to experience.
We do not permit oral divorce agreements in our office because they are a disservice to our clients. More importantly, do not let anyone tell you that you have to place your agreement on the record. The judges will not force you to go that route, and you should not let your attorney convince you to put something as important as your divorce agreement on the record.
If you have any questions about an oral divorce agreement, do not hesitate to CONTACT US. As always, we will not tell you what you want to hear. We will tell you what you need to know.