Unenforceable Agreements to Agree & Family Law

In Maryland, “agreements to agree” are generally unenforceable. For a contact to exist, the terms must be “sufficiently definite”. If the parties’ terms are too undefined, a court cannot make a contract for the parties. Rather, the court may find that there is no enforceable agreement or, at least, that certain terms are not enforceable.

When does this arise in family law? Just a few examples…

Future division of personal property (belongings, furniture, and household items, for example) as the parties mutually agree…

Liberal parenting time/visitation or “fair” division of holidays, without a stated schedule…

A mediation requirement in the event of a disagreement puts a process in place to resolve the future dispute, but does not mean an agreement will result. So, a contract term based upon future agreement, even with a mediation requirement, may still be unenforceable.

Getting along is definitely important to the future success of a contract. This can also invite agreements to agree – basing future likelihood of agreement on current agreement successes. However, this assumes that a couple who agrees now will always agree, which is not guaranteed. And, if the relationship sours, the contract becomes the basis for handling future disputes.

So, the best time to have the difficult and detailed discussions about future problems, and commit them to a contract, is when a couple is getting along. These challenging conversations are all the harder – if not impossible – when relationships deteriorate or are strained over time. If nothing else, explore a process that will decide the disputed issue even if not ready to commit to terms now. This is far more easily done for financial matters – for example, without agreeing on the value of a house, detail a process for determining its value in future. For children’s issues (parenting time, decision making, and child support), parents are very limited in their ability to delegate the ultimate decision on these issues to a third party other than a judge. So, consider detailed contract terms regarding the children now, which parents can then decide to observe – or not – later, based upon how well they continue to get along and co-parent organically.

In short, a contract is a go-to document to tell divorced couples and separated parents what happens if they cannot agree at the time issues arise. Making sure that contract is sufficiently definite to navigate those disagreements is an important step in the settlement process.

Working with an attorney to advise you, negotiate or strategize settlement terms, and draft or review an agreement are all important steps to making sure your settlement agreement will be an enforceable contract and not an unenforceable agreement to agree.

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