Q: Wife petitioned for custody/spousal support after a separation agreement was signed waiving these, what happens next
We separated in December, and signed a property settlement agreement with joint legal custody, her having the kids every other weekend, and we both waived any and all spousal and child support payments. Today I received summonses from the court indicating she has petitioned for custody and spousal/child support. The agreement was drafted by her lawyer, and I had it reviewed by a legal service, there were no issues. Can she still petition for custody and support after this type of agreement is signed and notarized?
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A: For valid agreements involving property distribution and spousal support, the court cannot enter an order inconsistent with those terms of the agreement. The same is not true for custody and child support, which is subject to the best interests of the child. Sometimes parties wish to file for custody even though there is an agreement so they can have the agreement incorporated into a court order that can be enforced. If the time to file for divorce has not yet passed then a custody and support filing in the Juvenile Court may be the only option. Alternatively, there may be a change in circumstance that has occured since the agreement that makes the agreement no longer in the best interests of the child according to one parent. In any event, having an agreement still matters, it just is not binding on the court. If a party requests a hearing, the Judge is supposed to make a decision based on the best interests of the child.
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