There are only two ways to resolve a divorce or custody case: either the parties negotiate an agreement, or they go to court and litigate. This is true no matter what the issues are, but there is a sort of third, hybrid option, which includes the possibility of a “reservation” with respect to a certain issue.
Usually, it’s a particularly thorny issue that the parties couldn’t resolve, like spousal support. Say they are willing to negotiate all the other issues, but – as far as spousal support is concerned – they just can’t reach an agreement. In their agreement, they put in all of the other provisions, and specify that they’ve reserved spousal support for future determination by a court of competent jurisdiction.
What does that mean?
This means that either – or both – parties can petition the court later, on the issue of spousal support alone. As far as the rest of the terms of the divorce are concerned, the agreement governs. But, for spousal support, they need a little extra help.
So, they can bring just this one issue in front of a judge, and the judge can decide just this one issue.
It’s a bit of a risk, of course. It’s hard to settle a case in a vacuum and, without knowing what spousal support might look like, it might be hard to reach an agreement concerning the division of the retirement accounts and real estate. But, then again, it’s certainly cheaper (and more effective) to only litigate one issue, so maybe you feel – on balance – that this makes sense.
In any case, it’s an option. You can leave one issue out, for future determination, if you can’t reach an agreement now. Or, maybe, you want to see how some things will work out before you decide whether you’re going to ask for spousal support at all. In family law, as in life, a million different things can happen, and no two cases are exactly alike. There might be a bunch of different reasons why you’d opt to do this.
I’ve also seen it happen in the context of child support. (Notice how support is the common denominator? Men HATE to pay it!) He doesn’t particularly want parenting time, but neither does he want to pay child support. Maybe we put in a reservation of child support, which then gives mom the option – later – to file for child support, but gives dad the benefit of knowing that, at least for now, it isn’t being ordered.
Sometimes, this can be a way to sort of surreptitiously get the parenting plan that you want ordered while letting him believe that he won’t have to pay child support.
Is this manipulative? I actually got this question the other day when I suggested a reservation in an ongoing case that I’m working on, and it surprised me. Umm – no. It’s not a waiver or child support set to $0; the word reservation is, I think, pretty clear, even if you’re not a lawyer. To reserve something means to set it aside for later.
Besides, child support is the literal bare legal minimum. Spousal support is less conclusive – it’s based on a complex weighing of a number of factors – but if it’s the one thing that is holding your agreement up, it’s not a cop out to put a pin in it for now and let a judge determine the issue later.
Not every case is crystal clear; it’s not always perfect or easy to get an agreement in place. Sometimes, there is an issue that is particularly troubling or that doesn’t resolve as easily as you might like. It’s best, usually, to resolve what you can resolve on your own, but that doesn’t mean that you can’t use the court for what it’s there to do – resolve issues that you CAN’T resolve on your own.
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