Previously, I discussed the issues that you need to consider when separating from your spouse. During the initial consultation, almost all new clients ask about the procedure for resolving those issues. Today’s post will attempt to explain the possible ways your case may be resolved.
Basically, you have two options: (1) you and your spouse can agree, or (2) you and your spouse can disagree.
For the issues on which you and your spouse agree, your attorney can draft settlement documents. These documents come in a couple of different formats, depending on what you are trying to accomplish. Often, the settlement document that the parties sign is a Separation and Property Settlement Agreement (sometimes referred so simply as a “Separation Agreement”). This document is a contract between the parties, and can include issues like alimony, postseparation support, equitable distribution, child custody and child support. A Separation and Property Settlement Agreement is typically not brought before a judge, so a judge usually doesn’t sign off on it (although, in some cases, the parties may choose to incorporate this document into a court decree for various reasons). Because the contract is not signed by the judge, it is not an order of the court. Two important differences between a contract and court order, in this instance, are the mechanisms for modification and enforcement. A different standard may apply to modification of the alimony and child support provisions in a Separation Agreement compared with a court order. Additionally, an order is enforceable by contempt of court; a contract is enforceable by bringing a lawsuit for breach of contract.
If the parties can agree on a resolution but would prefer to have a court order in place, this can be accomplished by filing a lawsuit on those issues and then having the parties and the judge sign a Consent Order. A Consent Order is an order of the court, and, thus, is enforceable by contempt.
If the parties can’t agree, then the solution is to file a lawsuit in court and litigate the issues. I always advise clients to reach an agreement, if possible, because litigation is much more time consuming and costly than settling outside of court. While a Separation Agreement can be drafted and signed in a week or two, lawsuits often take months, or even years, to resolve. It is not uncommon for two parties who have previously not been able to agree on anything to work out an agreement after the lawsuit has commenced. In this case, either a consent order is entered or a dismissal is filed and the parties sign a Separation Agreement.
It is also worth noting that any combination of the above methods is possible. For example, in some cases you might end up with a Separation and Property Settlement dividing up the marital property, a Consent Order for child support and alimony and a court order for child custody. Your attorney can advise which of these methods of resolution are best suited to your situation.