What Happens To Our Custody Order If I Go Back To Him?
While the majority of couples who begin divorce proceedings follow through until the divorce is finalized, some couples find during the proceedings that they want to reconcile. However, in many instances, much paperwork associated with the divorce has already been completed and approved by the court, including custody orders. While it may seem that these orders would be automatically voided upon reconciliation, it’s not always that easy. If you find yourself with a custody order already in place, yet you have decided to go back to your spouse, here are some key facts you will want to keep in mind.
Marital Settlement Agreement
When couples divorce, they usually sign what is known as a Marital Settlement Agreement, commonly referred to as an MSA. Summarizing such aspects as the length of the marriage, property obtained by the couple during the marriage, and other agreements such as child custody and visitation, this agreement is considered a binding court order once it is signed by both parties. Therefore, even if the couple decides to reconcile or even remarry, that does not necessarily mean the agreement is automatically terminated. Instead, the court may choose to uphold parts of the original agreement temporarily, perhaps for several months, until it is clear the couple is indeed reconciled. Once this is established, they can petition the court to have the MSA and any parts of it, such as child custody orders, rescinded.
A Legal Contract
Once a custody order is in place, the court views this as a legal contract between both spouses. As a result, for the contract to be voided, both parties generally have to agree to it, then petition the court for the agreement to be null and void. However, it’s important to note that if the agreement is voided by the court, then the couple decides to stay separated or proceed with the divorce, the entire divorce process must start all over again. Needless to say, this will take a great amount of time and money, so it’s vital to make sure any decisions made regarding reconciliation at this point in time be done so very carefully.
Leaving the Order in Place
In most of these situations, attorneys for both spouses will highly recommend the custody order be kept in place during a trial reconciliation. By doing so, you will still have Plan A to fall back on should the reconciliation not work as well as you expect. Unfortunately, many people let their emotions carry their thinking during this process, and choose to ignore their lawyer’s advice about leaving the order in place. As a result, if the reconciliation doesn’t work, there will be no custody order in place. Therefore, you will have to renegotiate the terms of the agreement, which may lead to changes you won’t like. By working with a family law attorney who has experience dealing with couples considering reconciliation, you will have an experienced, knowledgeable, and objective legal professional by your side, making sure the legal rights of you and your children are protected every step of the way.
Motion to Set Aside
To make sure you don’t find yourself having to still abide by certain terms of a custody order, your attorney will have to file what is known as a Motion to Set Aside, which will ask the court to proclaim the custody order is no longer in effect. However, this can get very tricky, especially if tensions run high during the reconciliation. For example, if your spouse gets angry at you and decides against the reconciliation, they may either attempt to have the previous custody order put back in effect, or instruct their attorney to negotiate new terms that may be far different than the original agreement.
Similar to a prenuptial agreement, a postnuptial agreement is one that is growing in popularity with today’s couples, especially those seeking reconciliation. With this agreement, very specific terms can be laid out regarding future child custody details, as well as other issues such as distribution of property and other assets. Looked upon favorably by the court as a good-faith gesture from both spouses, this will allow you to take the reconciliation slowly, all the while knowing you have terms in place regarding custody should the reconciliation fail. While some couples attempt to construct these agreements on their own, it’s always best to consult a skilled family law attorney who can ensure the language contained in a postnuptial agreement will protect your parental rights as they pertain to custody.
Consider Your Child’s Emotions
In situations such as these where parents attempt reconciliation, the process can be quite hard on a child’s emotions. This is especially true if the separation and divorce proceedings have been contentious, leaving the child feeling very insecure and distrustful. Because of this, it’s always best to proceed slowly in these matters, all the while reassuring your child that nothing will be their fault, whether you and your spouse stay together or not. Since your child will naturally feel confused during this time, many attorneys and courts often recommend family counseling as an additional tool to help keep the family together.
Rely on Your Attorney
Even though you feel you may know what’s best during this tumultuous time in your life, always rely on your attorney’s advice regarding custody orders. By doing so, you’ll know that no matter what transpires, your legal rights are protected.