When a handshake is not enough
Sometimes, post-judgment, after the dissolution process has faded into a distant memory, the situation of one or both parties changes. I have seen too many situations where the parties agree to make certain changes but do not reduce it to a formal order because they don’t want to incur the cost, or because they don’t want to upset the other party. Then, sometime later, one party insists on following the order and the other party comes to me asking for help. By then, it is often too late to do anything.
Sometimes these handshake agreements are absolutely fine, but there are situations where they absolutely should not be relied on:
This happens often when a parent will lose their job, or suffer a reduction in pay, and there is an existing order for child support. The parties then work out an informal handshake agreement with the other parent to reduce child support during this period of unemployment or reduced pay.
Months or years go by, sometimes with further changes to the handshake agreement. Then something happens, and one parent demands to abide by the order, seeking back child support for the entire period of time. Unfortunately, then it is likely too late for the other parent to do anything and they are stuck with a sizeable support arrears (including interest).
Generally, the Court is legally prohibited from modifying child support retroactively and can only modify as of the service of a motion to modify. So, if it goes to court, the Court will follow the order, regardless of the financial circumstances. The other parent has no ability to enforce the handshake agreement.
The lesson here is that if there is an agreement to modify child support, it needs to be reduced to a writing. You do not have to file a motion, if the other parent is in agreement. You just need to submit a stipulation to the Court.
If there is not an agreement, you will want to get a motion on file as soon as your financial situation changes.
While Child Support and Spousal Support are treated differently under the law, the same concern applies with Spousal Support. A handshake agreement is not enforceable. If there is an agreement to modify spousal support, even temporarily, it should be reduced to an order so it is enforceable and no one can change their mind.
Major Changes to the Custody or Visitation agreement
Small temporary changes to the day to day schedule are fine and do not necessarily need to be reduced to an order. Swapping certain days, of holidays, etc. However, if it is intended as a permanent change, or it is a substantive change to the timeshare, it should be reduced to an order. With visitation, the Court has some discretion, but it becomes easy for the other parent to argue any changes were not intended to be permanent, or to dispute that the change occurred at all.
If you agree to change the terms of the property agreement in your Judgment, this should be reduced to a writing as well. While there is more discretion with the Court for property, Courts are reluctant to enforce handshake agreements if one party then changes their mind.
Often, parties worry about incurring a cost of a motion and going back to Court. However, if both parties agree, it is a relatively simply matter of writing it up and submitting it to the Court. With an agreement, there will be no motion and no need to appear in Court.