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Are the terms/agreements contained in a Legal Separation immediately

enforceable, or do they become...
Are the terms/agreements contained in a Legal Separation immediately enforceable, or do they become enforceable only in a divorce?
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Answered in 6 minutes by:
10/14/2013
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 17,515
Experience: Licensed Texas General Practice Attorney
Verified

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

The answer is that "it depends". First of all, if there is an agreement pertaining to child support, "parties may not by agreement divest the court of jurisdiction to order child support." (Practice Under the California Family Code (Cont.Ed.Bar 2009) § 8.3, p. 306.) "[P]ublic policy also prohibits a parent from waiving or limiting, by agreement, a child's right to support." (Kristine M. v. David P. (2006) 135 Cal.App.4th 783, 789 [37 Cal.Rptr.3d 748].). Accordingly, regardless of the parties’ intentions in a Marital Agreement, the courts in California will continue to maintain jurisdiction regarding child support.


Parents have no right, in California, to waive or limit by agreement a child's right to support. (Fam. Code,[fn1] § 7632; K.M. v. E.G. 2005) 37 Cal.4th 130, 144 [33 Cal.Rptr.3d 61, 117 P.3d 673]; In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, 1426 [72 Cal.Rptr.2d 280].)

ScottyMacEsq :

And if the signed, written agreement specifically states that it will take effect at some future point (such as ratification by a court) then that is the case. But absent those two caveats, it will be enforceable and valid immediately after both parties sign it.

ScottyMacEsq :

Now it's still subject to modification by a court, but that would only happen if the court determined that the agreement was grossly unfair to a party that had little or no bargaining power.

ScottyMacEsq :

Otherwise, the court will typically incorporate the agreement into the final order. But the agreement is enforceable before the final divorce because it specifically assumes that it will apply to a separation (before the final divorce) as well as after.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

I thought this question was to go to a California Lawyer?

ScottyMacEsq :

It goes into the general queue unless you specifically ask for a California lawyer. But this is the law in California (as it is in most states). Settlement agreements are contractual, and as such, can be enforced as contracts. Contracts (unless specifically stating otherwise) are enforceable immediately after signature.

Customer:

ok. That makes sense. It sounds like the kit is a statement in the LS that says the terms of the LS will become active at some point in time. Am I correct?

ScottyMacEsq :

"the kit is a statement in the LS..." I'm not sure that I understand what you mean by that. Do you mean that you have purchased, or will purchase, a legal separation kit that says that it will have a statement that says it will be effective at some specific time?

ScottyMacEsq :

If the settlement agreement specifically has a statement as to a date when it will be effective, that is when it will be effective. Otherwise, it will be effective immediately upon signing.

Customer:

Great! That's what my senior brain needed to make sure I comprehend. What do I do now to finish this session?

ScottyMacEsq :

I understand. If there's nothing else, please rate this answer below. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Thanks! That was an excellent answer.

ScottyMacEsq :

You're welcome, and again, good luck to you!

ScottyMacEsq
ScottyMacEsq, Lawyer
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Satisfied Customers: 17,515
Experience: Licensed Texas General Practice Attorney
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