Clients will sometimes ask me whether the Court would “allow” a certain settlement proposal. My response is almost always that so long as both parties agree to the terms, you can do just about anything. Within reason, of course. This is especially true when both parties are represented by an attorney.
For example, the law provides guidelines for the issue of child support. Such factors as the parties’ incomes, parenting time percentages, and the number of children are inserted into the child support calculator, and the result is the presumed child support obligation. Stated another way, the number provided by the child support calculator is what the Court would most likely order if child support were a contested issue.
But, sometimes parties have their own ideas for how they want to handle child support. They may understand the child support guidelines, but they want to do something different. When this happens, the parties are essentially “deviating” from the child support guidelines. This is allowed by law, but an explanation must be provided within the divorce decree explaining why the deviation is in the best interests of the children.
So, in this child support example, the Court would most likely allow terms that do not mirror the child support guidelines, but really only because both parties agree to it and agree that it is in the best interests of the children. In the absence of an agreement to the contrary, the Court will almost always follow the child support guidelines.
Spousal maintenance can provide another example. In certain cases, if the assets are sufficient, one spouse may want to “buy out” their spousal maintenance obligation. That is, provide the other spouse with a disproportionate property settlement in lieu of paying spousal maintenance. If both parties agree to these terms, there really is no reason why a case cannot be settled this way. Again, the key is that both parties agree. If there is no agreement, the Court would simply apply the law on spousal maintenance and order an amount of spousal maintenance to be paid, as opposed to a buyout.
A lesson to be learned, then, is that you have more creative settlement options available to you when you pursue mediation or other forms of alternative dispute resolution. If a Judge has to make a decision, he/she will simply apply to the law to the facts, and really has very little discretion to order more creative alternatives that the parties might find more appealing.
Another thing to consider when weighing mediation versus trial.
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If you are facing divorce and any of the divorce-related issues such as spousal maintenance, child support, child custody, property division, or domestic abuse matters, you need our experienced Minneapolis divorce attorneys to help you. Contact Beyer & Simonson in Edina, Minnesota today at (952) 303-6007.