Temporary Agreements in Divorce and Custody
Temporary Agreements are complicated issues in divorce and custody cases. If your husband (or child’s father) proposes one, you should proceed with extreme caution.
That being said, we often use temporary agreements for all sorts of reasons. I’m working on one right now for a client who needs custody and spousal support determined on a temporary basis. It happens fairly frequently that, though we can reach an agreement about some issues, we can’t necessarily reach an agreement about all issues. In that case, we can enter into either a temporary or a partial agreement to resolve those issues, at least for the time being.
Usually, we enter into a temporary agreement because the situation is expected to change in the near future, but the parties need some kind of stability or certainty to tide them over and bridge the gap. After all, divorce and custody cases create times of great uncertainty, and most of my clients are eager to end that feeling of uncertainty as soon as possible.
Why do I need to be careful when negotiating a temporary agreement?
Well, it’s all in the wording. I’ve had clients come in with agreements that they’ve signed, telling me that they’re temporary – though no word in the agreement indicates that that’s the case. In some situations, I suspect this comes from sneaky husbands. They’ll tell their wives the agreement is just temporary to induce them to sign, but then, upon a more detailed reading, the agreement is actually permanent. (After all, if it doesn’t specifically SAY that it’s temporary, its presumed to be permanent!)
It’s really, really difficult to get an agreement overturned in court. If I’m being honest, it’s virtually impossible. If your agreement isn’t very, very clear about what it’s supposed to do, how long it’s supposed to last, and how each party’s future entitlements are impacted, you may find that you’ve negotiated away a lot more than you originally intended to.
Do I need an attorney to negotiate a temporary agreement?
No, not technically. You are legally allowed to represent yourself in the Virginia courts (or outside of court, in negotiations) in any divorce or custody related case.
Should you? Probably not. It’s not really a good idea to try to attempt some of these more nuanced agreements without at least the advice and involvement of a Virginia family law attorney. After all, you want to make sure – make CERTAIN – that you include the right language in there to show the judge what you and your husband (or your child’s father) actually intended to do.
If you want, for example, spousal support to be awarded on a temporary basis, you may also want to say that both parties reserve a future determination of spousal support, whether temporary or permanent, for future negotiations or for determination in court. If you don’t, the judge may assume that a temporary award of spousal support is all you were ever aiming for; not that this was supposed to be a stopgap between two different points, but that support for, say, six months, was all you ever intended to receive. You’ll want to specify beginning dates and end dates, how the support will be modified, whether it’ll be modified to something specific, and even whether terminating or modifying factors apply before that term has expired. As you can tell, even just given this brief summary of all the things you might want to include (which, admittedly, I pulled right off the top of my head), there are a lot of details that you’ll want to include.
In fact, when I write these agreements, I make sure to have at least one other attorney review them, because even attorneys aren’t 100% perfect all on their own – even though we’re pretty darn good. Besides, that’s our office policy. All agreements and documents sent to the court are automatically put through a review process, so that no stone is left unturned.
Mistakes happen. They especially happen when you’re unfamiliar with the law. Besides, you know what you meant to say, so you tend to read in a way that fills in the blanks, and may make sense to you even when it’s not completely clear to a stranger reading your agreement. Those kinds of mistakes are avoidable, but they’re ones we see very often in temporary or partial agreement situations. That’s exactly what we definitely don’t want to happen to you!
Should I use a temporary agreement?
Maybe! I like them, in the right situation. They can help ease tensions and make the transition a lot easier. There’s often an awkward period after separation but before either an agreement is reached or a judicial determination is made that officially gives each party the things that they are entitled to receive, and a temporary agreement can help make that period less traumatic and difficult.
It’s a good idea to talk to an attorney about your case, and get an idea of whether a temporary agreement might be a good idea for you. Each case is unique, and there’s no one size fits all solution. But it may be that a temporary agreement is appropriate for you, and might help the overall trajectory of your case. After all, people who are less desperate and overwhelmed and traumatized can be calmer and make better, more rational decisions as their case progresses.
What if I can’t make him sign a temporary agreement?
Yeah. Well, that’s always the problem, isn’t it? You can’t MAKE someone sign an agreement, whether temporary or permanent.
If you need something determined on a temporary basis but you can’t get your husband or child’s father to agree, you may have to file with the court. In a divorce case, you can set a pendente lite hearing (that’s Latin for “while the litigation is pending”) in order to determine, on a temporary basis, items like child support, child custody, spousal support, and other things (like injunctions against wasting marital assets, orders against harassment or interference, and exclusive possession of the home). If you can’t get him to agree, this may be your best bet. Talk to an attorney about your case and your options today, if you’re wondering what course of action might be best for you.
For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.