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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 41221
Experience:  I provide family and divorce law advice to my clients in my firm.
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CR2A confirmation for pro se litigant

Customer Question

After 6 hours of mediation, my ex and I signed a CR2A covering a parenting plan modification (that provided me with sole legal and residential custody of our two children) and child support modification (that adjusted the standard calculation to $0 for her) yesterday. My attorney, and the GAL in the case, signed as well. The parenting plan is close to what the GAL originally recommended. My ex was pro se. Today, my ex is unhappy with the agreement. Since she was pro se, does she have to confirm her agreement in open court? I suspect she won't and may well have negotiated in bad faith just to have me incur legal, mediator, and GAL expenses.
Submitted: 6 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 6 years ago.
Thank you for your question.

Legally since your spouse was "pro se", she would have to confirm in open court for it to be binding. Since she had no other agent or representative with her when the mediation plan was signed, she would still have to formally agree to terms even if she signed. That is done by the judge to ensure that the other party entered into the plan voluntarily and not under any sort or form of duress. I realize that this does not help your case, but the judge would want to ensure that all procedures were followed, and if your spouse DOES fail to confirm, the courts will very likely hold it against her and subsequently disfavor her in whatever decision is ultimately reached.

Good luck.
Customer: replied 6 years ago.
My ex had an "advocate" (but not attorney) with her, and her signature was witnessed by her "advocate", the mediator, and the childrens' guardian ad litem. My attorney has advised me that her signature is binding, and subsequent SMS messages from my ex express that she "did agree, so we will not go to trial".

I now believe that is sufficient for us to sucessfully move for enforcement, if necessary.
Expert:  Dimitry K., Esq. replied 6 years ago.
Thank you for your follow-up.

If she did have someone with her then I do agree with your attorney. So long as she was not there alone but had a party with her, her signature and consent would be deemed binding. Plus, since your ex agreed via text to uphold the conditions, that can also be brought in as evidence should she later refuse to hold to her promise.

Good luck.
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Customer: replied 6 years ago.
O.K. I thought she had to be represented. Settlement is then complete, and all that is required is enforcement, if necessary.
Expert:  Dimitry K., Esq. replied 6 years ago.
She does not have to be completely represented, she simply cannot be in a position where there is unfair pressure or lack of advocacy on her side. Since she DID have a third party with her who witnessed the event, it is deemed equivalent in the eyes of the court. More important is her subsequent behavior (the texts); those can be used to show an agreement took place and it would be therefore binding on the parties.
Customer: replied 6 years ago.
Yeah, that's what I would have thought. Except State Superior court local rule CR2A states that agreement must be confirmed by signature of attorney OR confirmation in open court OR entry in the court minutes. Since she was pro se I became concerned.

I presume your opinion stems from being able to show the agreement has all the elements of a contract: consideration, timliness, free will (witnesses, including a well-respected mediator and guardian ad litem), and a meeting of minds -- this last part evidenced by subsequent SMS messages.

I remain apprehensive, though, as any time I have to return to court to enforce an agreement it becomes a costly affair. She has been found in contempt once on a tangentially related issue (obstructing my power of sale over the marital home), and there is strong evidence that she may have perjured herself when claiming to not have received child support when she had custody where her signatures on cancelled checks is quite clear. (I must have the record for shortest interval between service of a Notice of Demand and Withdrawal of Service from the state: two days.)

Her general tactic appears to be non-cooperation, requring me to decide whether to seek enforcement of a particular order, or extortion: threatening to allege abuse if I do not yield on some issue.

Thanks for your opinion. As you should have noted, I have approved payment.
Expert:  Dimitry K., Esq. replied 6 years ago.
You are most welcome, and I do tend to concur with your review--when you are dealing with an opponent who has a propensity to not be fully truthful, it never hurts to be extra careful about the information and review. I still uphold that due to witnesses, lack of barriers to a valid agreement (no undue influence or duress), and her subsequent ratification of terms you have very little to worry about. Plus, as evidenced by witnesses, you have enough signed affidavits and forms to compel this order into going into affect.

Good luck!

PS. I have received payment, thank you!
Customer: replied 6 years ago.
The only remaining wrinkle is that the agreement requires the approval of the court. But, as the GAL is in favor of it, I very much doubt the court would not approve it.
Expert:  Dimitry K., Esq. replied 6 years ago.
I also concur with that. When there are no contests, the court typically rubber-stamps such agreements without further detailed review.