Collaborative Family Law

Help! I spent 15 hours in a Divorce Mediation and settled my case, but now my spouse tells me he is backing out!  

Family Law mediations generally start at around 9 or 9:30 AM and go until there is an impasse or settlement.  I have been in mediations that have lasted between 12 and 15 hours.  Once an agreement is reached, the better practice is to have some kind of writing (either a memorandum of understanding or a complete, comprehensive agreement resolving all issues) for the parties to sign to memorialize the terms.  

But what happens when a party wants to back out of an agreement after signing?  Sometimes people, rightly or wrongly, feel they were pressured or manipulated into signing an agreement with which they are now unhappy.  They don’t want the agreement approved by the Family Court and want to litigate all issues.  Can this really happen?

The policy of our courts is to encourage litigants to negotiate out of court settlement and to enforce agreements between parties.  When an agreement has been reached, and it is “reduced to writing and signed by the parties and their counsel” Rule 43(k) of the rules of Civil Procedure permit a court to enforce its terms as a binding contract.  

“It is a long-standing and well-settled rule that an attorney may settle litigation on behalf of his client and that the client is bound by his attorney’s settlement actions.” Motley v. Williams, 374 S.C. 107, 111 (S.C. Ct. App. 2007). As the authorized agent of a client, the principles of agency law require this.  

Disputes will arise regarding the status of the writing: Is it a comprehensive settlement agreement, or simply an outline of an agreement leaving many less complicated issues yet to be resolved. 

A memorandum of understanding, without sufficient particularity regarding division of all assets and debts, a detailed parenting plan, and the terms of any support, may well be unenforceable.  However a signed comprehensive agreement, without more, will likely be enforceable against all objections.  

So, what to do? A motion to compel the approval of settlement agreement is the most likely course of action. But it’s family court, so a likely result will be an order to….. go back to mediation!!

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