The Dangers of Oral Agreements in Divorce, Custody Cases


  • Oral or verbal agreements need to be put into writing, in order for them to be argued if they are ever to be challenged.
  • If both parties are in agreement, it is more beneficial to file a motion to modify an existing legal agreement to reflect the oral agreement already reached.
  • Many have been sued for unpaid alimony and child support, and without having the oral agreement in writing, they cannot substantiate the agreement.

From the first sign of marital problems to the finalization of the divorce decree, it cannot be understated how important getting everything in writing is.

Having a record of conversations, spending habits, and general occurrences allows you to make substantiated claims, regarding your divorce or custody case, in hopes of legitimate change being done to benefit your situation.

Without that record, the claim is not substantiated, and the oral agreement cannot be proved in court.

Equitable estoppel

From a legal perspective, proving the verbal agreement in a legal argument is enabling a legal principle known as equitable estoppel, and this rationale protects one party from being harmed by another party’s voluntary omission to perform an act that is legally imposed by the law of which the party is capable, according to the Legal Dictionary.

The type of equitable estoppel that occurs during the challenging of divorce and custody cases is called promissory estoppel. This is a contract law doctrine, that occurs when a party reasonably relies on the promise of another party, and eventually, that reliance is called into question by the other party. This can often occur when the emotions of the situation step into a pre-existing oral agreement.

When dealing with the emotional aspects of marital discord and the subsequent divorce experience, they sometimes forget to get records of conversations that have been had. If there are children involved, they have been sequestered away from the discussion and are not privy to the ins and outs of any oral agreement that is made, leaving no witnesses except the two spouses in the discussion.

This can be devastating to a case in a variety of ways.

Alimony and verbal agreements

One of the biggest ways that verbal agreements can bite you down the line is during the alimony process. While a decision may be handed down, based on income, standards of living, state laws, etc., you may look to strike an informal understanding with your soon-to-be ex-spouse.

Scott Trout, Managing Partner and CEO of Cordell & Cordell, spoke on the Men’s Divorce Podcast about how a former client had made a verbal agreement with their ex-spouse to pay a lower amount in alimony than the decree had stated and had written evidence of the verbal agreement.

When the ex-spouse came back years later claiming that there was unpaid alimony, the written evidence of the verbal agreement provided context and support to the claim’s that his client was making.

Enforcing child custody and child support

Another situation where oral agreements often create confusion is when enforcing child custody agreements. Without any written evidence to confirm that a verbal agreement in the child custody schedule was reached, the written child custody agreement is what is looked at as the enforced aspect of any dispute.

Since there is no written evidence of the verbal agreement, the only way to change the child custody schedule to what the verbal agreement entails is to file a motion to modify parenting time and show that the verbal agreement is in the best interests of the child.

That being said, any change in the parenting time issued will likely affect the amount of child support paid, which means the party may have an argument to file a motion to modify child support based upon the oral agreement.

Speaking of child support, verbal agreements regarding child support garner a lot of attention. On one hand, you, as a parent, always want to be able to provide for your children and give them the best life possible. On the other hand, you do not want to jeopardize your financial stability and go broke.

That’s why many turn to verbal agreements.

Public case

One of the more publicized cases involved former member of the United States House of Representatives Joe Walsh. According to his claim, he did not pay child support from March 2008 to December 2010 because he and his former wife, Laura Walsh, had a verbal understanding that they would divide the children’s expenses. However, according to their verbal understanding, neither would pay the other child support.

Laura Walsh claimed he owed $117,437 in child support and interest, and the reason that they never formalized their agreement was that they “were both tired of court appearances and the resulting emotional and financial impact on the family,” according to court documents.

The dispute was later resolved out of court, and the couple said that they regretted the ‘public misunderstanding.’

Regardless of how public of a figure you are or how good of a parent you are, without getting your oral agreement with your ex-spouse in writing or without filing motions to make the arrangement a part of your modified divorce decree, it can be challenged easily, leaving you to deal with the fallout of the situation.

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