Recently a client asked me why it was necessary for parties to appear with their attorneys in court if the parties had agreed how to divide their property and how to share their children using an alternative dispute method such as collaborative practice. This article provides an answer to this question.
Because state law requires a custody and property settlement agreement to meet certain standards, every custody and property agreement must be approved by a superior court judge “on the record.” Therefore, when parties settle a divorce case, they must appear before the judge and explain the terms of their agreement(s) to the judge “on the record” so that the proceedings are memorialized. Now, all court proceedings at least in Alaska are recorded digitally. Before digital recordings were available, the in-court clerks made tape recordings of the proceedings. Before tape recordings existed, a court reporter would type verbatim what each person said in court into a special court reporter machine.
All proceedings in front of a judge are recorded so that the attorneys, the clients and the judge have a record of the proceedings in court. If the proceeding is a trial, it is necessary to preserve a record of everything that went on in the courtroom because either party has the legal right to appeal an adverse decision.
Judges quite often hold status conferences to find out what is going on in a case. These are recorded so that there is a record of what was said in the courtroom. Similarly, some judges will schedule trial dates in court and these scheduling hearings are recorded as well.
Finally, even if a case is settled, having a recording of what went on in court when the parties placed their settlement on the record is critical. It quite common for the parties to get into a dispute over the terms of their settlement agreement. It is frustrating for the attorneys when the terms of the settlement are not stated clearly on the record. A June 7, 2008 post on the Oregon Divorce Blog describes how a settlement can go awry if the lawyers are not extremely careful in placing a settlement on the record. As this post suggests, the lesson to be learned is to carefully document in writing the terms of the settlement before it is ever placed on the record.