Quick Question (I hope)

[Stepmom0418]

Parties came to an agreement in mediation.

Bm has since failed to follow that agreement.

BM and her attorney had till Aug 1 to send the signed mediation agreement back to DH attorney. (a deadline made by DH and his attorney) DH attorney sent 3 letters to BM attorney in regards to this and never recieved any response not even a phone call.

They failed to send the signed agreement by the deadline and there was no contact from BM's attorney as to what the hold up was.

The mediation agreement came in the mail to DH attorney on Aug 18, 2004 and is signed by BM and her attorney now.

DH attorney is going to try and get the agreement waived so we can proceed with obtaining physical custody of ss.


Mediation was complete on 6/23/04 and DH attorney typed up the agrrement and sent it to BM attorney on 6/26/04.


Question

1) Are Dh and his attorney being unreasonable by expecting Bm and her attorney to respond within the time they set?

2) Do you think the judge will set aside the agreement and let us procede?

3) Any other advise?

 

[socrateaser]

>1) Are Dh and his attorney being unreasonable by expecting Bm
>and her attorney to respond within the time they set?

Stipulated orders are construed under the Law of Contracts. A contract requires an offer, acceptance, and consideration. If you can "prove" that you made an offer, and that the offer would be revoked if not accepted as of a date certain, then the offer is revoked as of that date.

However, if your order states something like, "This is the only agreement between the parties, no other agreement exists, beyond the "four corners" of this document, and no prior or contemporaneous oral or written agreement may be used as evidence to contradict this agreement," and there is nothing in your stipulated agreement stating the existence of a deadline for acceptance, then the agreement is valid and enforceable.

If there is no proof of a date certain for acceptance, and the above-stated text is absent from your agreement, then the court will look to what is reasonable, i.e., is two months a reasonable time for the other party to accept the agreement?

And, on that issue, it's a crap shoot -- judge's discretion.

>
>2) Do you think the judge will set aside the agreement and let
>us procede?

I don't read tea leaves.

[Stepmom0418]

Thank you very much.

Let me make sure I understand you.

****However, if your order states something like, "This is the only agreement between the parties, no other agreement exists, beyond the "four corners" of this document, and no prior or contemporaneous oral or written agreement may be used as evidence to contradict this agreement," and there is nothing in your stipulated agreement stating the existence of a deadline for acceptance, then the agreement is valid and enforceable.

This is what the agreement reads:

Now on this 23rd day of June, 2004, the above named petitioner (dh) by and through his attorney, Ms X, and the above named respondent  (BM)by and through her attorney Mr XX, have came to an agreement through mediation and as for this proposed mediation agreement states the following for the courts aproval :


Then it goes into the parenting plan. There is nothing more other than BM and her attorneys signatures. DH and his attorney have not signed it yet.

On this there is no deadline date.

The deadline date was written in a letter from Dh's attorney to BM's attorney.

As I stated before BM has not followed this agreement nor the temp order and has denied visitation numerous times.


1) Do you believe this would be enforceable if Dh was not to sign it?

2) Would the fact that she has chose not to follow any of the previous orders help us at all in getting the mediation agreement waived?

[socrateaser]

>1) Do you believe this would be enforceable if Dh was not to
>sign it?

You haven't signed it yet? If so, then it's absolutely unenforceable. An agreement must be agreed to, and you have no agreement. And, your letter containing the deadline for acceptance is admissible as evidence that there was a deadline for acceptance, so, there is no contract.

>
>2) Would the fact that she has chose not to follow any of the
>previous orders help us at all in getting the mediation
>agreement waived?

Yes, but, that's just gravy. You have a slam dunk, unless the court officer doesn't feel like following the law.

[Stepmom0418]

Thank You Very Much for the VERY QUICK response!!