It may seem strange, but settling divorce outside of court, is really done by contract. This blog post covers this topic because with the freedom to contract guaranteed by the Indiana and United States Constitutions. The way this typically occurs is the attorneys send agreements the parties have reached to be signed and forwarded to the court, have a settlement meeting or attend the mediation. The document that reflects a total agreement or partial agreement is a binding contract.
What is so unique about resolving a case by agreement (i.e., contract) is the parties may agree to terms that a trial court would not or could not order. This give the parties flexibility to resolve their divorce or post-divorce or paternity case in a way that makes the most sense to them at that point in their life. However, to get to this point of a binding agreement/contract, the parties have to agree and reduce it to writing. Oral or unsigned agreements or counters to agreements do not suffice.
Also, the trial court judge has to approve it. Sometimes a judge will not sign the contract as a matter of law. This is typically because the parties have not made an agreement that is in the children’s best interests or does not require child support. Child support must be accounted for because this belongs to a child, not the parents and they cannot contract this right away. In a rare case, where the agreement appears unconscionable, and is punitive to one side, the judge may also refuse to approve the divorce.
In Indiana, trial court judges, lawyers, and parties have a wide array of legal tools in the “legal tool box” to resolve domestic cases without trial, which in most cases is preferable. We hope this blog post helps educate you about the nature of agreements to resolve some or all issues without going to court. The Indiana Constitution and General Assembly have provided trial courts with a vast number of tools to aid you in divorce. This blog post is not intended to solicit a specific client or legal advice. Dixon & Moseley, P.C. attorneys practice domestic and other areas of law throughout the State of Indiana.