What Happens at a Family Court Hearing to Approve an Agreement?
In order to approve a family law agreement the family court must make determinations about the agreement’s fundamental fairness and determine that the parties entered the agreement freely and voluntarily. If the agreement involves financial issues the court will want to review the parties’ financial declarations. The court will also want to question the parties about the agreement. If a party lives out of the area or is unable to attend the hearing, the court will generally accept an affidavit attesting to the fairness and voluntariness of the agreement.
Among the questions the court will typically ask the parties about the agreement are:
- Is this agreement fair?
- [If there are minor child(ren) involved] Is this agreement fair to your minor child(ren)?
- Are you under the influence of any drugs, alcohol or medications that would affect your ability to understand this agreement or today’s proceedings?
- Are you suffering from any mental or physical condition that would affect your ability to understand this agreement or today’s proceedings?
- Are you satisfied with this agreement?
- Are you capable of complying with this agreement?
- Do you understand that if this agreement is approved it will be the order of the court and will be enforceable by the contempt powers of this court?
- Do you understand that these contempt powers include the sanctions of being sentenced up to one year in prison, fined up to $1,500.00, or made to do up to 300 hours of community service, or any combination thereof?
- Were you coerced into entering this agreement?
- Are you entering into this agreement freely and voluntarily?
- Do you understand that you have the right to a trial if you don’t reach an agreement?
- Do you understand that you waive your right to a trial by entering this agreement?
- [If there are financial issues involved] Before entering this agreement did you have complete access to any financial information you desired from the other party?
- [If there are financial issues involved] Before entering this agreement did you provide the other party full financial disclosure?
- Do you understand that this agreement is non-modifiable except as it related to child custody, visitation and support?
- [If represented by counsel] Are you satisfied with your attorney’s services and has your attorney answered all your questions about this agreement?
- [If not represented by counsel] Are you knowingly and intelligently making the decision not to retain counsel and are you aware that the opposing attorney does not represent you or your interests?
- Do you still wish this agreement be made a final order of the court?
If the parties answer these questions in a manner that convinces the judge the agreement is fair and was entered into freely and voluntarily the court will then approve the agreement.
If the parties are seeking a divorce as part of the approval of the agreement the court will next ask the parties if they can be reconciled. This is a required part of South Carolina policy under S.C. Code § 20-3-90, which favors the preservation of marriages. If either spouse claims they cannot be reconciled the court will find they cannot be reconciled. Next the parties will need to provide testimony establishing the date and location of the marriage, that jurisdiction and venue are proper, the names and birth dates of the children who were born of the marriage, whether the wife is currently pregnant, the county of the last marital domicile, the date of separation, and evidence supporting the ground for divorce. The court will finally require corroboration of the ground of divorce independent of the parties’ own testimony. Assuming these conditions are met the court will grant the divorce.
If a proposed order has been prepared prior to the hearing and that order is acceptable to the court, the court will sign the order approving the agreement and, if a divorce was requested and granted, granting the divorce. If no such order was prepared for the hearing the court will direct one party or that party’s attorney to draft that proposed order. Only when the order has been signed by a judge and filed with the clerk of family court is the agreement a valid court order.