Enforcing settlement agreements in family law cases
By Steve Pradell
Alternative Dispute Resolution (ADR) has, fortunately, been more widespread as fracturing families are taking control of their lives and working together to hash out their differences. Through mediation agreements, dissolutions and court driven settlement conferences, parties are moving quickly through the system, reducing litigation fees and easing heavily burdened superior court calendars.
But parties in emotional cases can easily wake up with buyer's remorse and spend considerable time and litigation costs attempting to undo the very settlements that they worked so hard to create. This article reviews Alaska law in this area and addresses the issue of how to insure that your negotiated settlements remain that way.
In Kerslake v. Kerslake, 609 P.2d 559 (Alaska 1980), the Court upheld an agreement where both parties, represented by counsel, had agreed to the terms and conditions of a property settlement. The Court held that a superior court judge may accept as "just" a divorce property settlement entered into by parties represented by counsel. The court did not impose an affirmative duty on a trial court to examine every property settlement reached by the parties to determine if it is just.
In Notkin v. Notkin, 921 P. 2d 1109 (Alaska 1996), the Court affirmed a superior court's order setting aside a property settlement agreement. Quoting H. Clark, Law of Domestic Relations, §16.10, at 551 (1968), the Court found that insofar as an agreement relates to the division of property, the separation agreement should be controlling in the absence of fraud, duress, concealment of assets or other facts showing that the agreement was not made voluntarily and with full understanding. In Notkin, the Court set aside a settlement when the evidence suggested that a party lacked a full understanding of the true nature and consequences of her actions at the time she entered into the agreement. She was originally from Thailand and the transcript of her testimony made it clear to the Court that she was not fully conversant in English. The Court also noted her unfamiliarity with financial and property matters.
Most recently, in Ford v. Ford, Case No. 5683 (April 25, 2003), the Court upheld the superior court's enforcement of a property settlement agreement challenged on numerous grounds. In Ford, the parties engaged in mediation while represented by counsel. Mediation produced a settlement, and the parties went into an empty courtroom to place their agreement on record absent court personnel. The mediator recited the settlement on record, and allowed counsel to clarify it. Subsequently, the parties filed numerous motions including a Motion to Enforce the settlement filed by Ms. Ford, and a Cross Motion to set the case for trial filed by Mr. Ford. The superior court found at a hearing that the mediation had produced a binding settlement agreement between the parties, and the judge issued an order enforcing the settlement and entering a Divorce Decree and Findings of Fact and Conclusions of Law.
The Court analyzed the settlement agreement under traditional contract principles. The Court reviewed the proceedings below to determine whether the parties intent to enter a final, binding agreement on the day of mediation. The court noted that Mr. Ford had actively participated in the process, particularly when he claimed that he was exhausted and unable to understand. The court rejected an argument that the oral recital placed on the record was not a binding agreement. The Court noted that despite his age of 73 and his medical problems, the Mr. Ford was represented by counsel.
The Court also examined the issue of the mediator's failure to ask the parties whether the agreement was entered into voluntarily and whether they understood the agreement did not violate public policy. Citing Crane v. Crane, 986 P.2d 881 (Alaska 1999), the Court held that a party need not expressly state on the record that it entered into a settlement agreement voluntarily for the agreement to be considered valid. This finding was based upon the fact that Crane was represented by counsel and by looking to the record. The Court also found that the presence of a superior court judge is not required for the parties to enter into a binding agreement.
The court noted that it would have been easier if the mediator had directly addressed the parties during the recorded session and confirmed that each understood the settlement and agreed with it. The Court encouraged judges and mediators who reach settlement agreements to confirm on the record directly with the parties their understanding of the settlement and their intention to enter into it, but the Court did not go so far was to make this a requirement to have a binding settlement agreement. The Court noted that the superior court judge correctly determined that the settlement was valid before applying the presumption of enforcement of settlements once reached.
So what should a careful practitioner do once settlement is reached? It may be wise to jot down a list of questions for each party to answer on the record once settlement has occurred. Having a judge present would be most beneficial. These questions are for you to prepare in your own words, but they should at least address whether or not:
- the party understood the agreement,
- the agreement was voluntarily entered,
- the party believes that the agreement, although perhaps not ideal, is fair,
- the party has obtained legal advice and is satisfied by that advice,
- the party is under the influence of drugs, alcohol or anything that would impair their judgment and/or their ability to understand what they are doing,
- the party was coerced or otherwise forced into the agreement
- the agreement placed on the record is the entire agreement between the parties
- the party understands that, absent extraordinary circumstances, the party is bound by the agreement
There are no guarantees that either side will not attempt to undo all of your hard work. But with enough of the above questions in the record, you may make the other side think twice before spending even more money trying to undo the product of your efforts.
Copyright 2003 by Steven Pradell. Steve's book, The Alaska Family Law Handbook, (1998) is available for family law attorneys to assist their clients in understanding domestic matters.