It is important to make your child custody agreement into a legally binding document when dealing with divorce. The Greenville family law attorneys at Irons & Irons P.A. want to help you figure out which child custody legal document best suits your individual needs.
There are two common ways to memorialize custodial arrangements – separation agreements and court orders.
Separation Agreements
Separation agreements are the most common way to create a parenting plan in child custody cases because they are the least expensive way to handle a divorce. With this agreement, you can address all the issues incident to divorce. This includes child custody, child support, post-separation support and alimony, equitable distribution, attorney fees, and any other claims incident to divorce can be solved in a separation agreement.
Court Orders
Another form of legal document that people use in child custody cases is a court order. At the end of a child custody trial, the judge can enter a court order. From here, parties can also enter into consent orders by filing a friendly complaint at the courthouse and having their family attorneys draft a consent order for custody.
When deciding which document is better for you and your circumstances, it is important to look at more than price and legal fees. The two factors you should look at most when comparing the two are enforceability and modifiability.
Enforceability
With a separation agreement, you have to file an action for breach of contract for it to be enforced. This can get complicated with child custody cases. If one party violates a provision in the contract, then the party seeking to enforce the separation agreement would have to file an action for breach of contract. However, the forms of relief are limited. All the court can really do is tell the parent not to do that anymore. There are no strong penalties that come with a breach of contract in a separation agreement.
On the other hand, a court order is enforceable by contempt of court. This enables the party trying to enforce that same sort of situation the ability to file a motion to show call and action for contempt. The court has remedies available for court orders, including the ability to reprimand the party that’s in violation of the agreement, to find that party monetarily, or to incarcerate the party. So, court orders provide penalties that you don’t have with breaches on contract in separation agreements.
At Irons & Irons P.A., we encourage our clients to file a friendly court action and enter into a consent order for custody, as opposed to doing a separation agreement.
Modifiability
Separation agreements and court orders also have different levels of modification available. At Irons & Irons, the family attorneys recently dealt with a case that had a modifiability issue with a separation agreement. In the case, a mother and father spent thousands of dollars working out a parenting plan in a separation agreement. The separation agreement was supposed to be incorporated into the divorce decree on the date of the entry of the divorce judgment, but that never occurred. So, when the time came for the divorce filing, one party rejected the other party’s motion to incorporate the separation agreement.
The court cannot incorporate a separation agreement unless it has the unqualified consent of both parties at the time that the separation agreement is being introduced or at the time that the party is moving to have it incorporated. Because of this disagreement, the court could not incorporate the agreement. Therefore, the court had to look at the best interest of the children to make a decision, because this is the legal standard used in child custody cases. Here, the court couldn’t consider or give any weight to the parent that had custody under their separation agreement. So, the court had to hear the case as a matter of first impression and had to consider the circumstances existing at the time of the filing.
Separation Agreements versus Court Orders
From the example, you can see that separation agreements have less authority and power than court orders. If the parents, in this case, created a court order, the party challenging the order would have had to prove that there had been a substantial change of circumstances affecting the welfare of the minor children, since the entry of the prior order. So, there is more of a burden than the “best interest of the children” standard that you find in separation agreements.
For these two reasons, our Greenville, NC child custody attorneys at Irons & Irons P.A. want to encourage you to consider drafting a court order rather than a separation agreement.
Legal Assistance for Your Marital Separation
If you are facing a divorce and or a child custody dispute and would like legal assistance, please contact the Greenville, NC Family Law Firm of Irons & Irons P.A. by visiting contacting us online or calling 252-215-3000. Attorney Gib Irons looks forward to helping you determine the best solution for you and your family.