So in the main, couples come to meetings of the mind and/or resolve their differences with agreements hammered out one way or another by the parties themselves.

Contracts between spouses in conjunction with divorce are generally called marital agreements. Such contracts can be further subdivided into three other types: antenuptial (or prenuptial), which are signed before marriage; postnuptial, signed after marriage but before divorce; and separation, signed after a separation and in anticipation of divorce. Typically, these agreements settle issues concerning asset and liability division, alimony, health and life insurance, legal and physical custody, child support, visitation, medical insurance and expenses and college.

Courts recognize that these agreements are negotiated under circumstances that make them different than commercial contracts related to goods and services. When the sweet wine of matrimony sours to vinegar, the memory of happier times now lost subjects the parties to all manner of emotions that can work to their disadvantage in protecting their own best interest when negotiating a separation agreement. Very often one party, often the husband, may have a built-in advantage, if for no other reason that he is the party who has handled the marital finances. Strange as it may sound one party, often the woman, has been known to sign separation agreements in a misbegotten hope of saving the marriage.

In many ways, courts treat these the enforcement of martial agreements the way the law treats the enforcement of contracts. In marital agreements, that means the parties may contract any arrangements that are agreeable to them, but the contract may not be so one sided as to be unfair or unconscionable. These terms have different meanings in law than the affective connotation of them would imply in lay conversation.

Like all contracts, marital agreements must be negotiated by people with a capacity and who make an offer and an acceptance that show a meeting of the mind. Consideration in these agreement is self-evident: who gets what of the marital estate and under what terms and conditions.

Like all contracts, what the parties agree to must be legal. Marital agreements may not go against public policy. For example, a couple may not expect the courts to enforce a prenuptial agreement providing that the marriage terminates every three years unless renewed by the parties.

Along this line, the "best interests of the child" doctrine cannot in any way be contracted away by the parents.

Grounds for attacking an agreement bring into play in what is known as substantiative and procedural insufficiency. Substantive grounds deal with the terms and conditions of the agreement or the conditions under which it was signed. Procedural grounds deal with what occurred after the agreement was signed.

Substantive insufficiency may focus on a question of whether an agreement is unfair or unconscionable. Both have been argued as defenses to agreements, but courts seem more divided about overturning an agreement said to be unfair. Unconscionable agreements, on the other hand, find no support in the courts. One Illinois court described an unconscionable bargain as one "which no man in his senses, not under delusion would make ... and which no fair and honest man would accept..."

In addition, agreements may be defended or attacked on grounds of procedural insufficiency based on the amount of time between the signing of an agreement and the first attempt to enforce it, the conduct of the parties and res judicata. These include what are called limitations, which in some states are a statute of limitations on separation agreement defenses; laches, whereby a party sits on his or her rights for a period before seeking to overturn an agreement; ratification, which recognizes the validity of agreement when the parties act as if it is valid; and most important, estoppel.

If the parties fail to reach and agreement, their case goes to trial, and the court’s decision and judgment substitutes for an agreement.

Since only a court can grant a divorce, these agreements are not usually called "divorce agreements."

In final form, agreements must be put in writing and often include a parenting plan.

See also Res Judicata; Laches; Estoppel

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Your Suggestion

1. Property Settlement Cements
   Unlike child support, custody and visitation, a property settlement is like cement: when it is done, it is done. After a divorce is final, it is too late for a change of mind. Poured cement means it is too late for lament.
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