This blog is my opinionated and not necessarily shared view of what belongs in a South Carolina domestic relations agreement that one is hoping to get approved and made an order of the family court.
Every family court agreement I draft that is meant to become part of a final order has five sections. From top to bottom I would label these sections: caption; whereas clauses; agreement, agreement acknowledgement; signatures.
The caption is simply the case caption. If no case has been filed when the agreement is being drafted, I would leave the case number not fully filled out but the caption would still contain the parties’ names and the county and judicial circuit where I expect the agreement to be approved. The caption will also include the title of the agreement, such as “Separation Agreement” or “Child Custody Modification Agreement,” that describes what the agreement is addressing.
I include this section because, per Rule 10(a), SCRCP, “[e]very pleading shall contain a caption setting forth the name of the State and County, the name of the Court, the title of the action, the file number and a designation as in Rule 7(a).” Per Rule 7(b)(2), SCRCP, “The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.” My reading of these two rules is that a family court agreement should have a caption. Not all my colleagues concur.
The whereas clauses are individual paragraphs, typically one or two sentences, that describe the factual predicates underlying the agreement. These clauses are not intended to be enforceable parts of the agreement but are meant to establish a number of important facts that establish the basis of the parties to enter this agreement and the basis of a particular court to approve the agreement.
Among the facts detailed in this section are the names and state/county of residence of the parties to the agreement, the relationship between the parties, and facts sufficient to establish personal and subject matter jurisdiction and venue. This section also notes the name and birthdates[i] of any children between the parties if children’s issues are being addressed. It notes who represented the parties in negotiating the agreement. If the agreement addresses financial issues, it notes that the parties provided the other full and accurate financial disclosure and all the financial disclosure the other desired prior to entering the agreement. Finally, the section notes how encompassing the agreement is (temporary or final; complete or partial) and the court where it is expected to be approved.
The agreement section is where the parties’ agreement is described. It is obviously the most important part of the document as it is the sole purpose of drafting the document in the first place.
With agreements involving custody, I believe many attorneys make this section substantially more detailed than it need be. One line of thinking about custody agreements is that it should address every conceivable contingency [how is custody handled if there in a hurricane evacuation in effect; how is visitation handled if the custodial parent moves 10 miles]. My line of thinking is that the agreement should focus on “big picture” issues and the parties should be adult enough to address minor issues as they occur.
The advantage of my colleagues’ philosophy is that if you address every contingency the parties do not have to fight or go back to court when that contingency occurs. My line of thinking is that if parents are so disputatious that they will fight over every contingency, going from a six-page, fifteen-term custody agreement to a twenty-five-page, eighty-term custody agreement just gives the parties more reasons to fight and greater ability to pursue contempt.
As part of my philosophy that domestic agreements should be as minimal as possible, I also avoid the boilerplate common in many of my colleagues’ domestic agreements. South Carolina law already addresses issues of enforceability and modifiability of family court orders. Yet I almost always see boilerplate language in proposed agreements addressing enforceability or potential modification. Years later, that language often creates unanticipated hurdles when a party attempts to modify or enforce the agreement.
My belief is that everything in this section of the agreement should address one of two matters: 1) what the parties are actually agreeing to; 2) what factual predicates are being assumed for this agreement in case future modification is legally authorized. As to what the parties are actually agreeing to, nothing should be in the agreement that is not intended to be enforceable by the court’s contempt powers. When I see a custody agreement that mandates the use of life vests on boats or age-appropriate child seats in cars, my thinking is “do folks really want to go to jail—as opposed to losing custody or visitation—over this issue?” It appears the answer is a resounding yes.
As for the factual predicates section, the goal is to address (or prevent) potential future modifications to the agreement. There are numerous ways this is handled. If a child support figure is premised on one party’s anticipated or imputed income, rather than actual income, the agreement needs to note that and note the income figure being used. If the parties anticipate support being modified upon some future event, that should be noted so that there is not an argument that the agreement cannot be modified because that “substantial change of circumstance” was not “unanticipated.” I have seen parties agree that support cannot be modified for a set period of time or that any income below a certain ceiling or above a certain floor is not a basis to modify support. While these provisions do not subject either party to contempt sanctions, they are useful in finessing agreements where one party will commit to a substantive issue only if potential modification is explicitly addressed.
As noted above, I try to keep my agreement section relatively brief. My experience is that a six-page custody agreement that expects the parties to “figure it out” if a hurricane is approaching or “figure it out or file for modification” if one party moves so far away that visitation become problematic leads to fewer disputes than a thirty-page agreement that tries—and inevitably fails—to anticipate everything. Plus, the more “stuff” in an agreement, the more potential disputes for disputatious litigants to litigate.
The fourth section of the agreement is what I call the acknowledgement section. It simply acknowledges things that the family court judge will want acknowledged before approving the agreement. At the hearing to approve the agreement the court will ask the parties these questions before approving the agreement (or review an affidavit in lieu of appearance attesting to this information). However, by including this language in the agreement, one greatly reduces the risk that one party can later attempt to repudiate the agreement by claiming that he or she did not understand the ramifications of the agreement being executed. My current boilerplate (often slightly revised to address circumstances such as no child issues, a pro se litigant, or a completely non-modifiable agreement) is:
In executing this agreement, both parties acknowledge that they believe that the agreement was fair to them and their minor child. Both parties acknowledge they are satisfied with it and capable of complying with it. Both parties acknowledge that they understand the agreement will be the order of the court and will be enforceable by the contempt powers of this court. Both parties understand they could be sentenced up to one year in prison, fined up to $1,500.00 or made to perform up to 300 hours of community service for non-compliance. Both parties acknowledge that they were not coerced into entering this agreement but are doing so freely and voluntarily. Both parties acknowledge that they had complete access to any financial information they desired from the other party. Both parties testified that they understood they were waiving a right to a trial by entering this agreement. Both parties acknowledge that they understood the agreement was non-modifiable except as it related to child custody, visitation and support. Both parties acknowledge that they are satisfied with their attorneys’ services and that their attorneys have done everything they requested. Both parties acknowledge that they are physically and mentally capable of entering this agreement and are not under the influence of any drugs or alcohol. Finally, both parties acknowledge that they wish this agreement be made a final order of the court.
The final section of the agreement is the signature section. This is where the parties sign and a witness witnesses the signature or the attorney acknowledges the signature. I often include a date in this section that gets filled out when the last party signs it. The signature section is how one establishes that both parties actually agreed to the agreement.
In 30+ years of negotiating and drafting agreements, I have found this five-section approach to create the fewest potential snags to an agreement being approved and (hopefully) interpreted in line with the parties’ intentions.
A sample separation agreement drafted in word is below.[ii] Note that just below the caption is language in bold, “Pursuant to S.C. Code § 15-48-10, Et. Seq. Notice That this Agreement Is Subject to Binding Arbitration.” That is because provisions related to real estate in this agreement are subject to arbitration. Whenever a provision of a family court agreement is subject to arbitration (and children’s issues cannot be arbitrated) such language is required or the arbitration provision is unenforceable.
[i] The names of the children will be listed as initials and the birthdates will not include the full names or birthdates. The full information will eventually be provided in a Confidential Reference List of Redacted Identifiers.
[ii] Word press creates some odd formatting issues and issues with symbols that are not in the draft available for download.
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