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“But We Had an Agreement!” The Five Hidden Dangers of Oral Postjudgment Agreements

“But we had an agreement!”

This statement is followed by that it was made over the telephone or in person between parties after they have entered a judgment in their case. The parties did not want to go to court to deal with the change that they agreeing as they decided to work it out on their own. While parties are free to modify or change their judgment, there are some hidden dangers in Oral Postjudgment Agreements and not reducing it to writing that both parties will sign. I will address five of those hidden dangers that parties may not know about.


1. The Court only enforces its written orders, not Oral Postjudgment Agreements.

A judgment entered in a family law case is not final as to issues of custody, parenting time, child support, or spousal support. A court has continuing jurisdiction over the matter to enforce provisions of the judgment that deal with child custody, parenting time, child support, or spousal support. The court will enforce the terms of the written judgment only. As law students, we learn that the judge enforces what is on the four corners of the page. This means that the intent of the parties is not enforced unless it is written in order for the court to enforce it. While parties can modify the terms of their judgment without the assistance of attorneys, that agreement must be in writing and submitted to the court for entry as an order to be enforced. I have been informed that former clients have sent the notarized written agreement to their Custody and Parenting Time Specialists at Oakland County Friend of the Court modifying the terms of parenting times. The agreement was reduced to an Order by the Custody and Parenting Time Specialists and entered as a stipulated order for the parties. Without the modified order reflecting the parties’ new agreement, the court would only enforce the terms of parenting time listed in their judgment.


2. Agreements can fall apart.

The reason that parties seek to modify the terms of the judgment is that change happens that no longer makes an agreement reasonable for the parties. Perhaps one party has moved out of the school district and the drive for the children to school is not reasonable. So, the parties agree to modify the parenting time schedule to give the relocating parent more time in the summer. The parties reached their agreement over the telephone in January and never confirmed their agreement in writing or entered an order with the court. In June at the end of school, the agreement has fallen apart, and one parent is now filing a motion with the court contrary to the agreement and denies the existence of the agreement. Without anything in writing or an order to enforce, the court will have no option but to enforce the judgment or enter an order based on the move to try to resolve the disagreement.


3. Oral Postjudgment Agreements are not complete or ambiguous.

Sometimes when parties seek to modify the judgment, their agreement is not complete and ambiguous. While the parties thought that they had an agreement, there was not a final agreement reached. When the terms are incomplete or ambiguous, the court is not sure what to ensure. Perhaps the parties agreed to switch their parenting time schedules. However, one parent thought it was a temporary switch and not a permanent change while the other parent thought that the change was permanent. This failure to agree on the duration of the change indicates that the parties did not “have a meeting of the minds” and there was not a complete agreement to permanently modify the parenting time. The court will likely order the parents to resume the schedule listed in the judgment. This can happen even after the children have spent the summer following the new schedule.


4. Children pay the price when the agreement is not written down.

In family law cases, it is often the children who lose. Their stability and sense of security are dependent upon their parents’ decisions and actions. While parents have every intention of acting in their children’s best interests, disagreements and arguments may continue even after the court case has had a judgment entered. I have seen parents reach agreements and then days later have buyer’s remorse and want the agreement dissolved or deny its existence. This is why it is important to put the agreement in writing in the form of an order, and not Oral Postjudgment Agreements. The order helps to prevent the changing of one’s mind as well as the disruption that children can experience when parents change their minds often.


5. The Court enforces its orders.

When the agreement falls apart or one parent becomes angry with the other, motions can be filed asking the court to enforce what was written in its last recorded order. I have witnessed a parent passionately stating that the parties had an agreement, even to the point of tears. However, the other parent, who is equally passionate, denies the agreement and seeks to enforcement of the judgment. This also happens when parties have non-modifiable spousal support and then agree orally to modify the terms or amount of the spousal support. As the court was not a party to modification and it was not reduced to a written order, the court has no other choice but to enforce its last order on the issue.


Despite the intent of parties trying to work together for the best interests of their children or with minimal court involvement, the court is involved because the parties have a court case number and judgment on file. The minimal court involvement in post-judgment agreements would be the entry of the parties’ written stipulated order that clearly reflects the new agreement. If you need help reducing your agreement to a written stipulated order, call today to find out our flat rate to help you do just that.

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