Understanding Stipulations in Family Court

What Is a Stipulation in Family Court

In family court, a stipulation is an agreement between the parties that essentially tells the court what the outcome of the case should be. It can involve issues like child support, visitation with non-custodial parents or spousal support. Because stipulations between the parties are viewed almost as seriously as an order by the court, it is extremely important that you have a qualified family law attorney on your side to carefully draft these agreements in a way that protects your interests.
Once the stipulation is prepared by both parties and signed, you can submit the signed stipulation to the court, where it will usually be accepted. Then the stipulation has the same weight as a judgment to the Court, one sentence: "The realities of [the reasons enumerated] and the fact that the parties have come to an agreement and resolved their differences as to the best interest of the child, ordered as follows . " If there is any variation or misunderstanding at the time of the signing of the stipulation, and specifically as to the percentage that the supporting partner must pay, when entering the order the court will interpret it in accordance with the belief of the supporting partner and the language of the stipulation. Once the stipulation is entered with the court, it can only be removed or modified by either of the parties or the court itself, with good cause shown.
If either party is not satisfied with the terms or the stipulation, make sure to have your attorney present for modifications. You want a good attorney who knows exactly how much of your income you can spend on your child and prevent the parent from being taken advantage of in other ways. Make sure you are in your right before you sign anything at the court.

Various Types of Stipulations in Family Court

Stipulations in family court can be broken down into three primary categories: stipulations regarding child custody, stipulations regarding the distribution of property and stipulations regarding spousal or child support. Once signed and approved by the court, compliance with these stipulations is ordered by the court.
Whereas stipulations may initially differ from a judge’s order, such stipulations will be readily approved by the court – providing that such stipulation is in the best interests of the parties and the best interests of the child. Basically, if the parties have agreed to the stipulation, it is highly likely that the court will approve the child custody arrangement as stipulated. In fact, in most cases, once the stipulation is signed by the parties and their attorneys, the agreement will simply be placed on the record and will be incorporated into an order without the need for a hearing.
For example, in a child custody stipulation, the parties may have agreed to one parent having primary custody of the children, to the frequency of visitations and to arrangements for holidays. If agreed upon at the outset, these stipulations will be incorporated into a court order. If, however, the parties reach an agreement during a highly contested trial and after having heard the testimony of many witnesses, the stipulation will be placed on the record and incorporated into the final order of the court.
In a property distribution stipulation, the parties may agree to the equitable distribution of property that they have acquired over the course of the marriage. The stipulation may involve a complete assessment and distribution of property, retirement benefits, bank accounts, insurance, health care benefits, etc. Property may be transferred from one spouse to another or sold and the proceeds equally distributed, depending on what the parties will agree to. Stipulated whether marital property is to be sold will likely be incorporated into the court order, but at other times the order may provide for either party to purchase the marital residence for a set price.
Support stipulations will generally provide for the payment of child support over a specified period of time. Stipulations may provide for the payment of a college education at a state university or other levels of education that can be substantial amounts. Stipulations for spousal maintenance may involve a buyout of future support over a certain period of time or payment made in small increments over a longer period.
Other stipulations may be ordered at the time of separation. For example, the court may order, as part of a judgment or order of court, that the parties are to remain separated (and not cohabitate) for a period of 12 months. While a party may have returned to the marital residence and reconciliation was made prior to the entry of a divorce decree, the same has no binding effect on the court or the divorce proceeding. Until the divorce decree is entered, there is no decree of marriage nullity.

Creating and Agreeing on Stipulations

In most circumstances, there are several ways for agreements or stipulations to be reached and implemented in Family Court. One way is simply to have the attorneys for both parties draft the language that will appear in the stipulation. It is then signed by both parties and submitted to the Court, presumably after the attorneys have explained to the parties the ramifications of the language of the proposed stipulation. Other ways to reach an agreement via a stipulation are when a mediator drafts such an agreement or stipulation or when the parties themselves reach an agreement on their own.
When an attorney drafts a stipulation, it is normally for a reason. Usually either litigation has progressed far enough that the parties have an understanding of what issues have already been decided and what issues are left to resolve or one of the parties has a desire to move the litigation quickly and substantively towards a resolution. It is my experience that very often parties feel some pressure to get the litigation completed so that they can move into the next phase of their lives. The danger in moving too quickly into a stipulation is that the parties may perhaps give up or overlook something that they should actually preserve through a further trial or the stipulation may place too great a burden of future involvement, expense, aggravation and time on one party.
When there is an agreement reached through mediation, very often a mediator will have the parties draft the stipulation once the basic criteria has been agreed upon. Although it is my experience the most seasoned mediators will draft the stipulation and add language directing that the parties seek input from the attorneys, my experience has also been that most mediators will forward the proposed stipulation to all of the parties’ attorneys for input prior to finalizing such a stipulation.
While there is no "formal language" that must appear in a stipulation in order for the Court to review the parties’ stipulation, usually the following criteria is included:

• Statement that the parties have voluntarily entered into the stipulation and that the stipulation is fair, just and equitable.
• Statement that no disclosures, warranties or representations have been made with regard to the stipulation.
• Statement that each party had the opportunity to consult with an attorney and that the parties are satisfied by the result reached in the stipulation.
• Statement that each party waives all claims against the other brought under the Family Law Act including claims for spousal support.

Additional language that directs the entry of a Judgment of Divorce on the basis of one of the grounds for divorce noted above is often included along with the waivers as a direction to the Court to enter the Judgment on a particular date after the passage of a period of time.

How Stipulations Work Legally

A stipulation in family court is no trivial matter. Once a stipulation is accepted by the court, it carries with it the full force of the law. Stipulations act as an agreement between the parents before the court and are treated as a binding judgment: if you break one, you could end up faced with contempt of court charges. If you fail to comply with a court order , you can face significant penalties. It is always important to respond to any type of formal agreement legally and ethically, and especially in family court. While there is a remedy at law for a breach of a contract, once the family court accepts your stipulation you could be in real trouble if you do not comply.

Pros and Cons of Stipulations

As with most areas of the law, stipulations in family court can have their benefits and drawbacks, and it is positive that parties negotiate their own agreements where they can. Generally, agreements in family court are based on stipulations because they save time and resources, and serve the interests of the parties if they are made fairly through negotiation over time. There should be no disadvantage to a court considering a stipulation in family court unless it seeks to take away a core right belonging to one party. In practice, however, there can be disadvantages to parties as well. It is not unusual for one party to dominate the discussions about what the stipulation will provide. The dominant party may exert unfair pressure on the other party to accede or to present a stipulation that is one-sided or unfair. That is why it is important for the family law lawyer to speak with the client, even one who may be difficult at times, and get a full and complete understanding of the situation so as to avoid bias in the advice being given. If the lawyer has a full picture, he or she can avoid having conflicts in the family court process from entering into the agreement if that is the case. Those conflicts can further prolong the process. In some cases, parties do not have lawyers and therefore cannot fairly obtain the benefit of legal advice in family court when they enter into a stipulation.

Common Myths Surrounding Stipulations

When a party to a family law action agrees to resolve one or more issues in the case by stipulation, there are a number of misunderstandings about the nature and effect of the stipulation. One common misconception is that the stipulation can’t be enforced by the court. For example, Bob and Sally have a divorce case, and they agree to resolve all issues except for Bob’s pension plan. In their stipulation, they set out that they will divide their assets fairly, so long as "their agreement is subject to judicial review and approval." This language is often included so that the agreement has the same finality as a final judgment, leaving no ambiguity or room for subsequent motions or other litigation. It is important to note that "subject to judicial review and approval" does not mean that the court will conduct a hearing. Most judges review stipulations on paper and are likely to approve the stipulation unless there is something in it that the court does not understand. If the court does not understand the stipulation, it may request that a hearing be held. In general, a well-drafted stipulation is entitled to judicial review and approval without a hearing.
Another misconception is that a stipulation can’t be modified or undone by a later court order. This goes hand in hand with the misconception that the stipulation must be approved by the court before the parties can do anything that the stipulation calls for them to do. In the example above, Bob and Sally have agreed to divide their assets in a specific manner, and have reserved the issue of Bob’s pension plan. A month after entering into the stipulation, it becomes apparent to Bob and Sally that the division of assets set out in their stipulation will create an undue hardship for one or both of them for many years . They can, with the permission of the court, modify the stipulation and create a different division of assets that will not create such a hardship. Such permission is probably not needed, because all courts have the inherent power to modify prior orders under circumstances where the application of the original order would create an injustice. There is a misconception that a stipulation is permanent, a final decision. The truth is that stipulations can and should be modified, as circumstances change in the future. As long ago as 2001, the Appellate Court explained: "Stipulations entered into by the parties during the course of a dissolution proceeding have themselves been recognized as ‘measures of fairness’ to which courts have given deference. … They are fluid agreements which, to carry out their purpose, may be terminated or modified by the court upon a finding of substantial change of circumstances in the future." (Emphasis added.) In re Marriage of Varner (2001) 94 CA4th 1027 at 1035-1036. The general rule is that, once incorporated into a court judgment (which in most cases occurs after the stipulation is submitted to the court, there are no surprises), a stipulation is treated the same as a court order. Hence, it is difficult, but not impossible to modify or undo, although it can be modified or undone. It is permanent only in the sense that one party cannot simply decide that they no longer want to abide by the stipulation (or the order that incorporates the stipulation into a judgment) and that the other party must comply. That’s not going to happen. The court will not allow them to walk away from the stipulation either. However, if a party wishes to have the spouse comply with the stipulation, they must do their part as well and cannot just ignore the stipulation. If a party cannot comply with the stipulation without hardship, the remedy is to modify the stipulation, with the court’s permission.