CHARLESTON COLLABORATIVE DIVORCE AND NEGOTIATED SETTLEMENT ATTORNEY JAY MCMILLIAN
WILL SETTLEMENT AGREEMENTS BE VALID IN FAMILY COURT IN SOUTH CAROLINA
For the most part, settlement agreements will be valid and endorsed by a South Carolina Family Court. Agreements may get different amounts of scrutiny based upon what specific issue is being negotiated. That is an important principle to remember when presenting agreements for approval to the Family Court.
CAN CHILD CUSTODY AND VISITATION BE NEGOTIATED IN A SETTLEMENT AGREEMENT
In South Carolina, a Family Court will endorse through a Court order an agreement that establishes custody and visitation between two parties incident to a child. The Court reserves the right to insure that the agreement is accordance with “the best interest of the child,” but the vast majority of the time, the court will defer to the judgment of the parents in the agreement and, though not dictated by law, assume that a negotiated custody and visitation schedule established meets this criteria.
CAN CHILD SUPPORT BE AGREED UPON THROUGH A SETTLEMENT AGREEMENT
Before going any further in this topic, it is paramount to understand that child support may be negotiated, but CHILD SUPPORT CAN NEVER BE WAIVED! Parties can't legally contract to absolve each other of the obligation to pay child support.
In theory, child support can be agreed upon, but there are wo overriding principles involved in child support agreements that must always be considered and addressed to the Court's satisfaction. One, any “negotiated” amount of child support better be spot on or pretty darn close to being what is dictated by the DSS Child Support Guidelines. Which leads straight into the second principle, a negotiated agreement on child support is never considered final in the eyes of a South Carolina Family Court. The Court retains continuing jurisdiction over child support and can make modifications to support awards based upon any future change in circumstances despite an agreement being executed
One additional item to consider in “negotiating” child support. Generally, a duty to pay support will end upon the child reaching the age of 18. However, this duty can be extended to cover college age children through agreement by the parties and this agreement would be enforceable.
CAN ALIMONY ALSO BE NEGOTIATED AND AGREED TO IN A SETTLEMENT AGREEMENT
Much like child support, alimony can be negotiated and agreed to in contract in the form of a settlement agreement. Also like child support, South Carolina Family Courts retain continuing jurisdiction of alimony despite being agreed to in contract, unless the contract states that the parties intend for the alimony to be non-modifiable in the future. In that instance, Court will not have jurisdiction to alter alimony going forward.
One big difference from child support agreements (and it's a big one so you better call on your attorney before doing this) . . . ALIMONY CAN BE WAIVED THROUGH AGREEMENT!!
CAN THE DIVISION OF MARITAL PROPERTY BE SETTLED THROUGH AGREEMENT
The short answer here is yes. The Family Court, in enforcing and approving settlement agreements splitting up marital property, will generally want to make sure that each party has made a full disclosure of their individual finances, that each party was free from duress or coercion, and that each party had legal counsel or had the opportunity to obtain legal counsel prior to executing the agreement.
One important note with property settlement agreements (and another reason to call your attorney prior to signing) . . . Property settlement agreements, once approved by a South Carolina Family Court, are generally NOT MODIFIABLE!!! Absent a showing of fraud or non-disclosure by the other party, once the Family Court approves the property settlement agreement, you are stuck with it.
DO I NEED AN ATTORNEY TO NEGOTIATE AND DRAFT SETTLEMENT AGREEMENTS
There is no way to hit all the legal requirements in language and to understand the legal ramifications of your actions though settlement agreements without the expertise of a Family Law attorney. Please allow me the opportunity to protect your rights in contract and in Family Law and insure that you receive a full disclosure of all legal consequences of the items subject to an agreement. Big firm service with a small firm touch, allow me to help you master this process.