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Protecting Yourself When Making Agreements Outside of Court

Nothing is better than when we get clients who truly co-parent with the opposing party to benefit their kids. It makes everyone’s lives easier and it’s great for the children involved by reducing stress in an already unnerving situation. However, co-parenting and the desire to reduce attorney’s fees and court costs by making agreements outside of court can lead to some unsuspecting penalties when one of the parents decides to claim an agreement was never made.

The typical situation arrives when the parents have a support and custody order in place but decide to modify it on their own. So far nothing is wrong with this scenario as the court encourages the parties to make the necessary changes that life circumstances require. But when the modification is done verbally and outside of court, this is when the potential damage can undue a parent’s best intentions and possibly ruin their financial future.

Hypothetical Agreement Scenario

Suppose the Court has ordered you to pay child support of $1,000 a month for the three children you share with your former spouse. Your former spouse (we’ll call them “ex”) soon gets a better paying job and as the kids are getting older they would like to spend more time at your house as you live closer to their school and friends. The Ex is okay with this arrangement and so you decide to bury the hatchet and verbally create a new reality where no one pays support, Ex can claim the kids on tax returns every year and you all share in the sports and extra expenses of the kids.

This situation goes smoothly for most of the next seven years as the two older kids finish high-school and head to college. With only one child left in the house and spending most of the time with you, you approach “Ex” and ask for some financial support for the remaining child.  Suppose Ex doesn’t like your suggestion and you decide to file a motion for a new support order since you basically have 100% custody. Before you can file your motion for support, Ex retaliates by contacting the Department of Child Support Services (DCSS) to enforce the old order from seven years ago requiring a payment of $1,000 a month. DCSS contacts you and gives you the bad news that according to their records, you owe $1,000 a month for the past seven years of non-payment along with interest charges. Before we even add in the interest charges you are already $84,000 in arrears.

Unless you are able to come up with some credible evidence indicating you have an agreement, you will likely be owing Ex a near six-figure sum in arrears. Besides going back on an agreement and being untruthful, what is the downside for “Ex” by claiming you don’t have an agreement and you owe the arrears? By making this claim, Ex gets a shot at a six-figure judgment and you will be spending several thousand dollars just to defend the truth and likely still owe some money in the end, if not all of it.

In our hypothetical, at least the kids are old enough to testify if persuaded to do so. But to have the children testify would put them in an awkward position of having to claim one parent is untruthful. Perhaps you are meticulous and you can find documents showing communication with Ex for shared expenses. You could also show proof of tax filings and perhaps you would get really lucky and have an email where a reference to this “agreement” was made. But even with some great circumstantial evidence, you may not be able to overcome the presumption the previous order of $1,000 a month is still valid. The Court could offset some of your arrears with Jackson Credits for the time you had the children more than your custody order allowed. But this will take a methodical accounting of the hours the children spent with you rather than with Ex for the past 7 years.

Get the Agreement in Writing

Remember, while it is always in the best interest of the children to co-parent and reach compromises out of court, you should always memorialize these agreements. Further, you never know when an attitude of cooperation will change to an attitude of disdain sparking one of the parties to bring a colossal financial claim against you. So, the better option is to write the few lines of the agreement, get it notarized and pay the filing fee to have it submitted to the court. The few dollars and minutes you spend now, could save you thousands of dollars and countless hours of stress down the road; not to mention the attorney fees in defending your case.

If you need an attorney to write an agreement, help with your case or defend you in court. Please consider the Family Law Attorney’s of Barrell and Janke Law LLP.

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