Making Your Deal Stick

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March 10, 2011

You and your spouse have independently reached an agreement as to how to settle your divorce case or your parenting time/custody issue. You are both in agreement, at least for the moment, but you have concerns that your spouse may change his or her mind and back out of the deal. What can you do? There are two statutory provisions that can provide assistance, but you must meet certain requirements in order to obtain assistance from the Court.

Oregon Revised Statutes 107.104 and 107.135(13) provide mechanisms that allow the Court to enforce agreements between the parties as if they were Court orders, using both contract and contempt remedies. However, in order to use these provisions, which pertain to both original divorce actions and modifications, the agreement must be in one of three forms: (1) a form of order signed by the parties (but not yet signed by the Court); (2) a settlement on the record (an oral agreement before a judge); or (3) a marital settlement agreement signed by the parties (a written contract signed reflecting the agreement). In at least one Court of Appeals case, a contract between the parties was enforced even though it was not reduced to a single written agreement, but it was clear that the parties had reached an agreement. It is not necessary that all of the details are worked out as long as the essential terms are clearly defined.

If an agreement is reached, the parties should attempt to get the agreement reduced to a signed written agreement or recite the agreement on the Court record to ensure that it is enforceable. It should be noted that if these steps are not taken, the other party is free to back out of the agreement, although doing so may result in an award of attorney fees later on. Protect yourself. Get your agreements in writing or put them on the record.