March 12, 2019 § Leave a comment
Just because your client agrees with her estranged husband to certain terms for settlement of their divorce does not mean that you should plug those terms into a PSA and shove it under the judge’s nose for approval along with a divorce judgment. Our appellate courts have held that some provisions are void and unenforceable as contrary to public policy. Here are the most notable:
- A provision that relocation of the custodial parent would automatically trigger a change of custody without court action is void because it deprives the chancery court of jurisdiction to modify its judgment. McManus v. Howard, 569 So.2d 1213, 1216 (Miss. 1990).
- Likewise, an agreement that the custodial parent may not relocate without prior court approval is void. Bell v. Bell, 572 So.2d 841, 845-46 (Miss. 1990).
- The parties may not agree that child support terminates when the child turns 18. Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss. 1991).
- A post-nuptial agreement that the father would automatically have custody of the parties’ child in the event of a separation was held to be unenforceable. McKee v. Flynt, 630 So.2d 44, 50 (Miss. 1993).
- A mother’s agreement to forego child support in return for a deed to some property was void as against public policy. Calton v. Calton, 485 So.2d 309, 310 (Miss. 1986).
- The parties’ agreement that the mother would pay no child support if she agreed to transfer custody to the father is unenforceable. R.K. v. J.K., 946 So.2d 764, 779-80 (Miss. 2007).
It should go without saying that the chancellor, before approving the agreement, must find that it makes adequate provision for the support and custody of the child(ren). MCA § 93-5-2(2). The court reversed in a case where the mother agreed to no visitation whatsoever and to a provision that her payment of child support was in an amount she could not afford. Lowrey v. Lowrey, 919 So.2d 1112, 1119 (Miss. 2005).
An agreement for no child support should be approved only in the most exceptional circumstances, such as unemployment. Brawdy v. Howell, 841 So.2d 1175, 1179 (Miss. App. 2003).
It is against public policy for the parties to present one agreement to the court for approval while having a secret agreement that they would not abide by its terms. Wilburn v. Wilburn, 991 So.2d 1185, 1193 (Miss. 2008). I set aside a divorce judgment on its first anniversary after I was presented proof in court that the parties had exchanged emails in the course of settlement negotiations that the husband promised he would not enforce the wife’s obligation to pay certain debts under the agreement if she would agree that he did not have to pay the child support provided for. Oh, and the agreement for her to pay certain debts was only in the agreement to help her qualify for a low-income mortgage.
Keep in mind that our appellate courts have been reversing cases in which the paying party was ordered to maintain life insurance in a benefit amount in excess of the total obligation. In one case, the trial court ordered the ex-husband to maintain a $1,000,000 life insurance policy to secure a $480,000 lump sum alimony award. The COA reversed, holding that the amount of life insurance may only be enough to secure the award. Griner v. Griner, 235 So.3d 177, 188-89 (Miss. App. 2017). Your PSA’s should follow that line of reasoning or reflect some other justification for the agreed amount.