Many clients wonder why divorce agreements are so lengthy and whether the precise wording is really that important. The length is due to the large number of issues that must be addressed. Maintenance, Child Support, Custody & Parenting Time, and Equitable Distribution are just a few of the topics that must be addressed in a settlement agreement. I’ve seen some agreements that omitted major issues, such as who pays for college, putting both parties, not to mention the children, in jeopardy.
Each section should lay out the parties’ agreement as clearly as possible so that both parties understand what is expected of them going forward. A single word can have a huge impact!
Let’s say two parents agree to “confer” before making a decision about their children’s extracurricular activities. This differs from saying they must “agree” in that conferring merely means to discuss, not to agree. So, where are they if they can’t agree on the activities? Normally, when I draft an agreement in which the parties agree to confer, I include a person or type of person to whom they can go for a tie breaker, such as the child’s guidance counselor or their Pastor, Rabbi, or other faith-based leader. They won’t have to return to court to get a decision this way.
Similarly, the words “shall” and “may” cannot be used interchangeably. For instance, if the clients agree to consult with a bankruptcy attorney, the words “shall consult” make a significant difference. If one party does not consult with a bankruptcy attorney and the other files for bankruptcy, the consequences can be severe.
Even words that appear to be self-explanatory, such as “biweekly,” can be problematic. Biweekly can refer to twice a week or once every two weeks. Which option did the parties settle on? If they meant that one parent would have the children twice a week for dinner during the workweek, it would be better to spell it out so that there is no confusion.
Whether the agreement is mediated or the result of intense negotiations and court time, your goal should be to have your attorney or mediator draft a rulebook that will allow you and your ex-spouse to live in the future with as few gray areas as possible. Because everyone understands the plain meaning of the agreement, “post-judgment litigation” should be kept to a minimum.
This requires some writing ability as well as a lot of discussion. Take the time to read and understand your contract, and ask your lawyer to explain any clauses that you don’t understand. Only then can you sign with certainty!