My attorney suggested I add a “no inclusion” clause in my separation agreement so that the agreement can’t be used in the divorce proceedings. The separation agreement grants me joint physical and legal custody, and does not require me to pay child support. Does this no inclusion clause work against me?
Although I am licensed to practice law in Michigan, Cordell & Cordell does have an office in Charlotte, North Carolina, and I strongly encourage you to consult with an attorney in your state because I can only give you general information. You should not rely upon this information as creating an attorney-client relationship, and you should seek counsel in your area for further instructions and suggestions within the parameters of the laws of your state.
A separation agreement is really a contract. In general, a “no inclusion” clause is an attempt to keep a contract from being truly binding in court. However, this type of clause flies in the face of what a contract is – a binding agreement designed to ensure predictability – and, in my experience, some courts will not consider an argument that a contract “is really not supposed to be considered” in contract dispute cases.
The same is not true for child custody cases. In most states, the court has an independent duty to ensure that its ultimate custody order is in the child’s best interests, regardless of what the parties agree in a separation agreement. Therefore, it is possible your separation agreement, as far as it addresses custody, will not be binding even if you wanted it to be binding.
I gather from your questions that you are unsure how your agreement will affect you in the future – i.e., could you get more custody or possibly less if your marriage dissolves? That depends on the facts at the time – Have you been the primary caregiver? Is your spouse neglectful? Are you? – and no attorney can accurately predict what, of the myriad possibilities, will happen to your marriage. If you have concerns about the “no inclusion” clause in your separation agreement, you should address them with your current attorney. Remember, your attorney works for you and therefore should answer all of your questions.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.