One goal of any Rhode Island Divorce lawyer in resolving a divorce proceeding at a Nominal Hearing is to insure that the Marital Settlement Agreement of the parties is "approved" by the court.
Approved agreements are essentially validated or "given the stamp of approval" by the Rhode Island Family Court Judge. To reach the level of court approval the Rhode Island Family Court Judge or Magistrate must have
(1) heard each party in the divorce testify under oath that the Marital Settlement Agreement was reached and entered into (usually signed) by him or her freely and voluntarily;
(2) heard each party in the divorce testify under oath that he or she believes the Marital Settlement Agreement to be a fair and equitable division of the parties' marital estate;
To be "approved" the Rhode Island Family Court Judge or Magistrate must
(A) be convinced that each party has "in fact" entered into the Marital Settlement Agreement freely and voluntarily free of duress, force or other coersion caused by the other party to the divorce; and
(B) be convinced that each party "in fact" believes that the Marital Settlement Agreement is a fair and equitable division of the Marital Estate of the parties; and
(C) review a Marital Settlement Agreement briefly to determine if any glaring issues regarding the minor children of the parties or regarding the parties themselves that may indicate a lack of protection of minor children or demonstrate immediately to a Judge or Magistrate a coersion of either of the parties; and
(D) find that the terms of the Marital Settlement appear to be fair and equitable and freely and voluntarily entered into by the parties based upon both of their testimony and therefore find that the Court "approves" the Marital Settlement Agreement as part of the Rhode Island Divorce Decision.
What is the significance of having your Marital Settlement Agreement "approved" versus an "unapproved" in a RI divorce proceeding?
An "approved" Marital Settlement Agreement is generally not subject to challenge as a valid and enforceable contract between the husband and wife in a divorce proceeding either in the Rhode Island Family Court or any other court with jurisdiction in Rhode Island to enforce contracts of this nature in Rhode Island. This may often be carried over to other states and courts in those states which have the authority to recognize and enforce such contracts.
An "unapproved agreement" is usually one in which a party presents a Marital Settlement Agreement to the Court but the other party is not present to testify about the agreement and verify that he or she entered into it freely and voluntarily and that he or she considers it a fair and equitable division of the marital estate. In such instances, without the absent spouses' testimony the court will usually allow the Marital Settlement Agreement to be offered into evidence, it will not approve the agreement because the court can only verify one party's testimony regarding the agreement.
An agreement that is not approved by the Rhode Island Family Court most often happens when the other spouse does not show up for the hearing but expects the other spouse to present the agreement they reached. This is what I refer to as an "unapproved" because the court will not approve it in the Court's Decision.
An "unapproved decision" is subject to being attacked as a contract at all. Therefore, the absent party could deny any voluntary agreement, could deny his or her signature on the document, could refuse to acknowledge any validity of the document. In essense, the absent party could state that the Marital Settlement Agreement is not a contract at all and therefore is not enforceable in the Rhode Island Family Court or in any other court for that matter.
By being "unapproved" by the Rhode Island Family Court Judge or Magistrate in the divorce proceeding, the Marital Settlement Agreement may be challenged on any grounds that any contract may be challenged, and it must survive those challenges before most courts will even consider any attempt to enforce the terms contained in the Marital Settlement Agreement.
It is truly important to have Marital Settlement Agreements "approved" in Rhode Island Divorce proceedings so that they will be considered valid contracts and their terms immediately enforceable by the Court from the moment enforcement proceedings are commenced.
Christopher A. Pearsall, Attorney-at-Law
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Note: If this article contains a case scenario with names, dates or amounts, any resemblance any connection to any person or situation now or previously existing is purely accidental, unintentional, and is merely a mistaken creation in the mind of the reader.
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