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The Uncertainty of Family Law

On Behalf of | Sep 9, 2020 | Child Custody, Divorce

The Brad Pitt and Angelina Jolie saga continues. Brad and Angelina separated four years ago, in September, 2016. In November, 2016, they reached a temporary custody agreement. Yet today, four years later, their case goes on. The Daily Mail reports that they have a custody trial set in October.

Divorce and child custody cases are resolved one of two ways: by agreement or by trial. Most cases are resolved by an agreement that is approved by a judge. However, when former spouses or partners cannot agree, their case must go to trial by a judge.

There are a number of factors that cause cases that go to trial. Some common factors that we see are:

  • substance abuse by one side
  • deceptive behavior (hiding money) by one side
  • domestic violence
  • one side has mental health issues
  • one side is a bully and completely unreasonable
  • one side is poorly-advised by their counsel and unaware of their own risks at trial
  • any combination of these factors

Oklahoma judges require mediation in virtually every family law case to encourage both sides to explore compromise and settlement options. Sometimes agreements are reached but don’t hold up. This can happen for a number of reasons: Sometimes one side says they agree but they are really playing games and have no intention or desire to settle. Sometimes an agreement is reached but then something happens after the agreement that changes things and makes the agreement undesirable to one or both sides. Sometimes an agreement is reached but one side changes their mind before the agreement is approved by the judge. On rare occasions, both sides present an agreement to the judge but the judge does not approve the agreement because the agreement is too unfair to one side or because the agreement violates a public policy, such as an attempt to waive child support.

When an agreement is reached then one side backs out before the judge has reviewed the agreement, the agreement will not be enforced unless the settlement agreement is determined by a judge to be “fair, just, and reasonable.” How does a judge determine that an agreement is fair, just and reasonable? The judge has to look beyond the terms of the agreement and consider the relation of the parties at the time of trial, their ages, health, financial conditions, opportunities, and contribution of each to the joint estate. In other words, by having a trial. From time to time, Oklahoma’s appellate courts are asked to review the ability of judges to enforce settlement agreements. Just last year, in 2019, the Oklahoma Court of Civil Appeals issued another opinion to guide Oklahoma judges and lawyers about the enforceability (and unenforceability) of settlement agreements. A signed agreement may not be enforceable until the judge has approved and signed it.

Settlements generally involve risk assessment and compromise. Trial means that at least one issue could not be compromised. To obtain a favorable settlement, you need a lawyer who knows the law and and the details of your case. If your case cannot be settled, you need a trial lawyer who has training and experience in persuasion and presentation of evidence. Even if you think your case will be settled, you will benefit from having a trial lawyer who can help you make a strong case and prepare the case for trial. This way, if the other side plays games or has a change of heart, you and your lawyer can make a winning case in the courtroom.