Reaching an agreement through mediation in a family law matter can be hard work, but also yield a great sense of relief when the final pieces are nailed down. It is essential before the process is concluded that the parties sign a written memorandum containing the terms settled upon. An important issue that must be addressed at this point is which formal documentation method should be used to memorialize the agreement reached – a Separation and Property Settlement Agreement or a Consent Order.
Rarely is there a black and white answer as to which format should be chosen, and much depends on the facts and circumstances of the particular case. For example, the issue of alimony by itself will potentially have a significant influence on the final decision. To illustrate, if the supporting spouse is paying alimony to the dependent spouse as a part of the settlement, and has agreed that the alimony should be a fixed amount for a fixed period of time, both parties may prefer to use a Separation Agreement, which creates a contract between the parties. An advantage provided by such a contract is that the Court cannot modify it in any way without the consent of the parties. As a result, the agreed-upon alimony creates an unavoidable payment obligation for the full term regardless of the future circumstances of the parties.
On the other hand, if the paying spouse falls behind on paying the alimony under a Separation Agreement “contract”, the recipient spouse will have more difficulty in enforcing the payment obligation through the Court using a contract-related procedure known as Specific Performance. If the alimony requirement had instead been in the form of a Consent Order, when the paying spouse fell behind in payments the recipient spouse could bring a contempt action before the Court – a much easier process to enforce the payment terms.
An analysis of the alimony issue does not end there. If an alimony requirement of a fixed amount for a specific period of time is placed in a Consent Order rather than a Separation Agreement, and there is a subsequent significant change in circumstances (such as the paying spouse loses his/her job), then the alimony amount can be modified by the Court to reflect the parties’ current situation.
As you can see, there is almost never an automatic choice as to which written form should be used to document an agreement reached through mediation. A thorough discussion between client and lawyer should occur before deciding between a Separation and Property Settlement Agreement or a Consent Order.