How Does One Turn a Domestic Agreement into a Binding Court Order?
Domestic agreements–agreements involving spousal support or alimony; the division of marital property or debt; or child custody, visitation and support–are not binding or enforceable until they are approved by a family court judge and made an order of the court.
Such agreements are often reached through mediation before litigation is commenced. When an attorney is the person handling the mediation, that attorney is bound by the requirements of South Carolina Rule of Professional Conduct 2.4. Included in that obligation are requirements that “[a] lawyer serving as a third party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third party neutral and a lawyer’s role as one who represents a client.” SCRPC 2.4(b).
Sometimes agreements are reached when only one party has an attorney negotiating on his or her behalf. Here the attorney representing one party to the negotiation must be concerned with the requirement of South Carolina Rule of Professional Conduct 4.3:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
Once such agreements are made a final court order they are enforceable, and their violation is subject to the court’s contempt powers pursuant to S.C. Code Ann. §63-3-620:
An adult who wilfully violates, neglects, or refuses to obey or perform a lawful order of the court may be proceeded against for contempt of court. An adult found in contempt of court may be punished by a fine, a public work sentence, or by imprisonment in a local correctional facility, or any combination of them, in the discretion of the court, but not to exceed imprisonment in a local correctional facility for one year, a fine of fifteen hundred dollars, or public work sentence of more than three hundred hours, or any combination of them.
Thus even when spouses, former spouses, or people have children together reach an agreement on domestic issues it is vital that the agreement be turned into a court order. If there is not ongoing litigation in the family court, one party to the agreement will need to file a lawsuit in the family court to seek court approval of the agreement. That party will actually need to file a complaint seeking court approval of the agreement, have that complaint served on the other party, wait for thirty days or until the other party answers the complaint (whichever happens first), and then attend a hearing in front of a family court judge in which the judge questions one or both parties about the agreement and approves the agreement. Finally an order will need to be drafted, signed by the judge, and filed with the family court clerk’s office. Only then will the agreement be binding and enforceable.
Because approval of such agreements is rarely contested–they are “agreements” after all–parties to these agreements often ask one attorney to represent both of them in obtaining court approval. This is absolutely prohibited and any attorney who indicates he or she can represent both parties in having a domestic agreement approved by the court is committing an ethical violation. See South Carolina Rule of Professional Conduct 1.7(b)(3) and comment 21.
While an attorney can act as mediator in helping parties reach an agreement and then act as the attorney for one party in getting the agreement approved by the court this course of action is fraught with ethical peril. First, an attorney assisting in a mediator role must be neutral between the parties and it is hard to be neutral when the attorney believes that he or she will subsequently be representing one of the parties as an attorney in domestic litigation. Also the party who will not be represented by the mediating attorney must waive any conflict of interest, with such consent required to be informed and in writing. See South Carolina Rule of Professional Conduct 1.9(a). It is hard for an unrepresented party to give “informed” consent when that party may be confused as to the differing roles an attorney has as a mediator versus an advocate. Further, both parties must give informed consent, in writing, for the mediator to now represent one party in the subsequent action to approve the agreement. See South Carolina Rule of Professional Conduct 1.12(a). Finally the attorney now representing one party has an ethical duty to advise the client if there are provisions in the agreement that may not be in the client’s best interests. See South Carolina Rule of Professional Conduct 1.1 (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”) It in untenable to counsel a client that an agreement one has assisted him or her in reaching in mediation may not be in that client’s best interests.
For all of these reasons, I try to avoid representing either party in obtaining court approval of an agreement I have mediated. Instead I prefer to refer one or both parties to other attorneys to take the steps noted above to turn their agreement into a court order.
If you desire Mr. Forman’s assistance in turning a domestic agreement into a court order, you are welcome to click here to contact his office.