As a Minnesota divorce attorney, a question that is often posed to me by my divorce and child custody clients is, "Can't my spouse (or the other party) and I just agree to something on our own?" Normally, my answer to that question is a resounding "yes" – the more you can agree to, the less there is to argue between the attorneys and the less Court involvement that will be necessary. What this normally also means is the divorce or custody proceeding will be easier on your pocket book as well.

However, there are a few exceptions to the "lets just agree to this and follow it" approach. First, if the agreement pertains to minor children in any manner, the Court will always apply an independent "best interests of the child" analysis. In other words, just because you agree to something, if that agreement impacts minor children, the Court could reject the agreement.

With regard to child support, there is a legal presumption that the statutory child support guidelines must be used in all child support determinations. If the parties wish to agree to a different amount, they must provide to the Court an explanation on why this "deviation from the guidelines" is in the children's best interests.

For an initial child custody determination, the standard for the Court would be "what is in the best interests of the children." If the parties agree to the child custody and parenting time schedule and provide an explanation for it, generally the Court's will defer to this agreement. The Courts generally appreciate the parties reaching an agreement on custody and parenting time – because in most cases the parents know their children the best and know what is best for their children. So, if they can agree on custody and parenting time, the Court should adopt that agreement.

The tricky part arises when the parties wish to modify an existing Court order (a post-decree modification). For example, John and Jane got divorced. They had two minor children, Jenny and Jimmy. In the divorce, Jane was awarded sole physical custody, the parties were awarded joint legal custody, John was awarded parenting time every other weekend and was ordered to pay $1,000.00 per month in child support. One year after the divorce, John was terminated from his employment, began receiving unemployment and was home for the majority of the days. Based on this, the John and Jane agreed between the two of them that they would modify their agreement to provide for joint physical custody, each spouse alternating every other week of parenting time with the children and that neither spouse would pay to the other spouse any amounts for child support. John and Jane agreed to this in writing, each of them signed it, but they did not submit it to the Court for a Judge to sign and file with the Court.

John and Jane's agreement would be considered an "extra-judicial agreement." Is it enforceable? Maybe.

Minnesota courts have approved extrajudicial modification of an existing divorce decree through stipulated agreement. There is a policy favoring the use of stipulations in divorce proceedings. But these stipulations are given considerably less weight when the agreement involves children. The Court is not bound by stipulations involving child custody. Further, child-support stipulations are given less weight to protect "the welfare of the children" as the paramount consideration.

The enforceability of an extrajudicial agreement depends on whether the agreement is both contractually sound and otherwise fair and reasonable. To be contractually sound, the extrajudicial agreement must be supported by consideration. Consideration is "a benefit accruing to a party or a detriment suffered by another party."The amount of consideration is not relevant to a determination of an agreement's enforceability. When parties make mutual, concurrent promises that are incorporated into a bilateral contract, such promises are sufficient consideration for each other.

Also, to be enforceable, an extrajudicial agreement must not be unfair or unreasonable to (1) the children by causing an adverse impact on them; (2) one of the parties as a result of overreaching, a lack of disclosure, or lack of opportunity to consult with counsel; (3) the state by causing one or both parties to seek public assistance; and (4) the district court by unnecessarily complicating future court proceedings. In determining the enforceability of an extrajudicial agreement, the district court may accept or reject the terms of the agreement in whole or in part.

So, the "long and short of it" is, just because you agreed to it, doesn't mean that the Court will recognize your agreement. However, as I mentioned at the beginning of this article, it is always best if you and your ex-spouse or the parent of your child can agree on the terms of your custody, parenting time and child support. But, the lesson to be learned here is, if you do reach a "post decree" agreement, please incorporate that agreement into a stipulation and order to submit to the Court for a Judge to sign and file with the Court Administrator. By doing this, you convert a semi-enforceable "extra-judicial agreement" into an enforceable "Judicial Court Order."

If you find yourself in this situation, please contact a Minnesota Divorce Attorney to assist you in converting your extrajudical agreement into an enforceable Court Order.