Does a divorce court need to approve a settlement agreement?
Someone posted a question at the one of the “ask lawyer” web sites whether the court has to approve a settlement agreement? Apparently, in a divorce, with both parties pro se, the parties had attempted to go into court to have their final marital settlement agreement approved so that they can could be divorced, and much to their chagrin, the trial judge refused to approve the agreement and adjourned the hearing, sending the parties back to try to negotiate a revised settlement agreement.
Any settlement agreement must be approved by the court. The court is not there just to “rubber stamp” any settlement agreement the parties put before it, whether represented by attorneys or not. The court is under a statutory obligation to scrutinize all settlement agreements to make sure that it comports with the law, particularly on the issues of child support and property division. However, the court has discretion to not approve a settlement agreement on other issues, which the court may deem against public policy, contrary to statute, on based on fairness and inequities to the parties.
The statutory authority in Wisconsin for court approval of martial settlement agreements lies in sec. 767.34.
767.34 Court-approved stipulation. (1) AUTHORITY. ” The parties in an action for an annulment, divorce, or legal separation may, subject to the approval of the court, stipulate for a division of property, for maintenance payments, for the support of children, for periodic family support payments under s. 767.531, or for legal custody and physical placement, in case a divorce or legal separation is granted or a marriage annulled.
(2) LIMITATIONS ON COURT APPROVAL. (a) A court may not approve a stipulation for child support or family support unless the stipulation provides for payment of child support determined in a manner consistent with s. 767.511 or 767.89.
(am) A court may not approve a stipulation for expressing child support or family support as a percentage of the payer’s income unless all of the following facts apply:
1. The state is not a real party in interest in the action under any of the circumstances specified in s. 767.205 (2) (a).
2. The payer is not subject to any other order, in any other action, for the payment of child or family support or maintenance.
3. All payment obligations included in the order, other than the annual receiving and disbursing fee under s. 767.57 (1e) (a), are expressed as a percentage of the payer’s income.
(b) A court may not approve a stipulation for a division of property that assigns substantially all of the property to one of the parties in the action if the other party in the action is in the process of applying for medical assistance under subch. IV of ch. 49 or if the court determines that it can be reasonably anticipated that the other party in the action will apply for medical assistance under subch. IV of ch. 49 within 30 months of the stipulation.”
The court in the case of Hottenroh v. Hetsko, 2006 WI App 249, 298 Wis. 2d 700, stated the following:
“A stipulation under this section is not a contract that would be binding on the parties once entered into, but is only a recommendation to the court. The court need not accept it but has a duty to decide whether that recommendation is a fair and reasonable resolution of the issues that the court wants to adopt. When a court adopts a stipulation, it does so on its own responsibility within it’s discretion, and the provisions becomes the court’s judgment. Once the court decides to do so, the right of a party to withdraw from the stipulation comes to an end.”